Can an Oregon lawyer agree to review and finalize estate-planning documents prepared by an out-of-state company that sells the plans to customers and pays the lawyer?
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This page answers the general question as of 2014. Ezel answers yours: whether it's allowed on your facts, under the current Oregon Rules of Professional Conduct, with citations.
Plain-English summary
A corporation not authorized to practice law in Oregon markets estate-planning services through sales representatives. When a customer buys, the corporation evaluates the customer's estate-planning needs, selects planning methods, drafts the documents, and forwards them to the customer's sales representative. The sales documents have customers authorize the corporation to obtain local counsel for the limited purposes of reviewing the documents for compliance with Oregon law and assisting in execution, and the corporation pays the lawyer for that work. The opinion asks whether an Oregon lawyer may accept representation of the corporation's customers in these circumstances, and answers no.
The opinion applies Oregon RPC 5.5(a), which bars a lawyer from practicing law in violation of a jurisdiction's regulation of the profession or assisting another in doing so, and Oregon RPC 8.4(a)(1), which makes it misconduct to violate the rules through the acts of another. Citing Oregon case law including Oregon State Bar v. John H. Miller & Co., the opinion concludes that when the corporation not only provides forms but also consults with customers, explains documents, makes recommendations, and renders advice, the corporation is engaged in the unauthorized practice of law.
Because the lawyer's role would be to help that arrangement function, the opinion concludes the lawyer may not represent the corporation's customers; doing so would aid a nonlawyer in the unauthorized practice of law, and the opinion states this is not cured by a disclaimer and a suggestion to seek separate counsel. The opinion adds that the arrangement also violates Oregon RPC 5.4(c), because the corporation expressly limits the lawyer's professional judgment to whether the documents comply with Oregon law. A footnote notes a lawyer who purports to advise the customer would also face at least a waivable conflict under RPC 1.7(a)(2) and possibly a nonwaivable conflict under RPC 1.7(b)(3).
In practice
The opinion holds that, under the Oregon rules, a lawyer cannot serve as the compliance-review-and-execution step for a nonlawyer company's estate-planning product when the company is itself practicing law. Per the opinion, the controlling problems are that RPC 5.5(a) bars assisting the unauthorized practice and RPC 5.4(c) bars letting the paying company confine the lawyer's professional judgment, and that a disclaimer does not cure the violation. Verify the current text of Oregon RPC 5.4, 5.5, and 8.4 before relying on any specific point.
Common questions
Q: Can a lawyer be hired by a company just to "review for Oregon-law compliance" estate plans the company drafted?
A: No. The opinion concludes that accepting representation of the company's customers in this arrangement aids the company's unauthorized practice of law in violation of Oregon RPC 5.5(a).
Q: Does it help if the documents include a disclaimer telling the customer to get separate counsel?
A: No. Per the opinion, the conduct is not cured by a disclaimer and a suggestion to seek separate counsel.
Q: What makes the company's activity the practice of law?
A: The opinion explains that the company does not just provide forms; it consults with customers, explains documents, makes recommendations, and renders advice, which constitutes the unauthorized practice of law under Oregon case law.
Background and rules framework
The opinion interprets Oregon RPC 5.5(a) (unauthorized practice and assisting it), Oregon RPC 5.4(c) (a third party who pays the lawyer may not direct the lawyer's professional judgment), and Oregon RPC 8.4(a)(1) (violating the rules through the acts of another), corresponding to Model Rules 5.5, 5.4, and 8.4. It notes a related conflict issue under Oregon RPC 1.7.
Citations and references
Rules of Professional Conduct:
- Oregon RPC 5.5(a) / Model Rule 5.5 (unauthorized practice; assisting it)
- Oregon RPC 5.4(c) / Model Rule 5.4 (third-party direction of professional judgment)
- Oregon RPC 8.4(a)(1) / Model Rule 8.4 (violating the rules through the acts of another)
- Oregon RPC 1.7(a)(2), (b)(3) (conflicts of interest)
Cases:
- Oregon State Bar v. John H. Miller & Co., 235 Or 341, 385 P2d 181 (1963)
- Oregon State Bar v. Gilchrist, 272 Or 552, 538 P2d 913 (1975)
- Oregon State Bar v. Taub, 190 Or App 280, 78 P3d 114 (2003), rev den, 336 Or 534 (2004)
- In re Phillips, 338 Or 125, 107 P3d 615 (2005)
Other opinions cited:
- OSB Formal Ethics Op. No. 2005-87 (UPL, financial and estate-planning service)
- OSB Formal Ethics Op. No. 2005-20 (assisting nonlawyers in UPL)
See also
- OSB Ethics Op. 2005-87: UPL, Financial and Estate-Planning Service
- OSB Ethics Op. 2005-20: Assisting Nonlawyers in UPL
- OSB Ethics Op. 2005-101: Lawyer as Mediator, Trade Names, and Fee Division With a Nonlawyer
Source
- Landing page: https://www.osbar.org/ethics/toc.html
- Original PDF: https://www.osbar.org/_docs/ethics/2005-115.pdf
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