Can a lawyer refer clients to, accept referrals from, or do legal work for a nonlawyer estate-planning firm that is itself practicing law unlawfully?

Plain-English summary

An estate-planning service is owned by a CPA, a stockbroker who is a certified financial planner, a life insurance agent, and a casualty insurance agent. By hypothesis, the service offers clients services that constitute the unlawful practice of law, as defined in Oregon State Bar v. John H. Miller & Co., where a financial and estate-planning firm's advice applying legal principles (primarily tax law) was held to be the practice of law. The opinion asks whether a lawyer may recommend clients to the service, accept its referrals to help clients transact business with it, or do legal work directly for the service.

The opinion answers no to all three. It applies Oregon RPC 5.5(a), which bars a lawyer from practicing law in violation of the jurisdiction's regulation of the legal profession or assisting another in doing so, and ORS 9.160, under which a person may not practice law unless an active member of the Oregon State Bar. Because the service's activities are, by hypothesis, the unlawful practice of law, the lawyer cannot aid the service by referring clients to it, accepting its referrals to assist clients in transacting business with it, or doing legal work directly for it.

In practice

The opinion holds that, under Oregon RPC 5.5(a) as it stood at the time of the opinion, a lawyer may not assist an entity that is engaged in the unauthorized practice of law, and that prohibition reaches sending clients to the entity, accepting clients it sends, and performing legal work for the entity. The analysis turns on the premise that the service's activities are themselves the unlawful practice of law. Verify the current text of Oregon RPC 5.5 and ORS 9.160 before relying on any specific point.

Common questions

Q: Can I refer my clients to a nonlawyer estate-planning firm?

A: Not where the firm is practicing law unlawfully. The opinion concludes RPC 5.5(a) bars a lawyer from assisting such a service, including by referring clients to it.

Q: Can I accept referrals from that firm to help its clients?

A: No. The opinion concludes accepting the service's referrals to assist clients in transacting business with it would assist the unlawful practice of law, which RPC 5.5(a) prohibits.

Q: Can I just do the legal work for the firm directly?

A: No. The opinion concludes doing legal work directly for the service to help it transact business with its clients also assists its unlawful practice of law.

Background and rules framework

The opinion interprets Oregon RPC 5.5(a) (unauthorized practice; assisting another), corresponding to Model Rule 5.5, together with ORS 9.160 (bar membership required to practice). It applies the definition of the unlawful practice of law from Oregon State Bar v. John H. Miller & Co. to a nonlawyer-owned financial and estate-planning service.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 5.5(a) / Model Rule 5.5 (unauthorized practice of law; assisting another)

Statutes:

• ORS 9.160 (bar membership required to practice law)

Cases:

• Oregon State Bar v. John H. Miller & Co., 235 Or 341, 385 P2d 181 (1963)
• In re Morin, 319 Or 547, 878 P2d 393 (1994)
• Oregon State Bar v. Ortiz, 77 Or App 532, 713 P2d 1068 (1986)

Other opinions cited:

• OSB Formal Ethics Op. No. 2005-20 (assisting nonlawyers in unauthorized practice)

See also

• OSB Ethics Op. 2005-20: Assisting Nonlawyers in the Unauthorized Practice of Law
• OSB Ethics Op. 2005-79: Legal Services for Church Members and Church Causes

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-87.pdf