February 10, 1975
Ethics Opinon 1975-2
SUBJECT: REQUEST FOR OPINION REGARDING SOLICITATION OF TAX CLIENTS
An attorney desires to supplement his income by preparing tax returns. He intends to print separate business cards identifying himself as a tax preparer and intends to advertise in the classified sections of the newspapers. Tax clients would be serviced in their homes, if possible, or the attorney's office if they desire. In all cases, the attorney proposes to be identified as a tax preparer only. May the attorney ethically advertise as proposed
No. An attorney acts in his professional capacity as an attorney in the preparation of tax returns, therefore, any solicitation of such business would be in violation of the Canons of Ethics prohibiting solicitation of professional employment.
STATUTES AND CANONS
Rule 2, Section a of the Rules of Professional Conduct of the State Bar of California provides:
"a member of the State Bar shall not solicit professional employment by advertisement or otherwise."
Canon 2, DR 2-101(B) of the Rules of Professional Responsibility of the American Bar Association provides in part:
"A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity . . . except as permitted under DR 2-103."
Canon 2, DR 2-101(E) of the Rules of Professional Responsibility of the American Bar Association provides:
"A lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business."
The committee on Professional Ethics of the American Bar Association has considered questions involving an attorney conducting a separate business and solicitation in connection therewith.
In Formal Opinion No. 233 the committee held that an attorney may not permit the publication of his name in a list of laymen and lawyers as collectors, adjusters, abstracters, tax consultants, and the like, even if there is no indication that he is an attorney. That opinion stated:
"The fact that a layman can lawfully render certain service does not necessarily mean that it would not be professional service when rendered by a lawyer. (Opinion No. 194)"
Regardless of the character of the service involved in a particular instance of employment in these fields, we cannot close our eyes to the fact that the services generally required are so related to the practice of law as to lead, or be apt to lead, to the necessity for legal services, if in fact legal services are not required at the outset. Solicitation by a lawyer of employment for rendition of such services is solicitation of 'professional employment' within the meaning of Canon 27. Application of the Canon is not dependent upon the disclosure or nondisclosure of the fact that the lawyer is a lawyer. Where a lawyer is directly or indirectly involved his conduct must not violate the Canons."
In Formal Opinion No. 234 the Committee held that an attorney may not form an association with a layman to operate an income tax service from his law office even though the attorney's name does not appear in connection with advertising done by the layman and nothing is stated therein indicating that legal services are available. The Committee said:
"In many instances the proper 'making out' of income tax returns will directly involve the rendition of legal service. Lawyers quite generally, as professional employment, in the practice of law, render income tax service to their clients. The style of name 'Income Tax Service' under which the association here involved proposes to advertise and solicit contains no suggestion that its service is limited to the nonlegal phases of preparing tax returns. This, taken in connection with the use of the lawyer's office as that of the association, would inevitably result in the association becoming a soliciting feeder to the lawyer's law practice. The lawyer would thus become the beneficiary of such solicitation and advertising. This would violate Canon 27."
It seems clear that the relationship of attorney and client arises not only with the attorney directly handling the case, but also with the partner of the attorney or the employer (Witkin, Cal. Procedure). Moreover, in addition to the technical relationship being created, the attorney now representing the husband actually advised the wife prior thereto.
IThe committee in Informal Opinion No. C682 was asked to consider a situation in which an attorney, in addition to practicing law, was conducting a real estate business from his attorney's offices. In considering that matter, the Committee stated the following general principles, equally applicable to the instant inquiry:
"While there is nothing in the Canons to prevent a practicing lawyer from carrying on another business, either from his law office or elsewhere, the opinions have held that such business must be an occupation entirely distinct from and unrelated to his law practice."
"Where, however, the second occupation, although theoretically and professedly distinct, is one closely related to the practice of law, and one which normally involves the solution of what are essentially legal problems, it is inevitable that, in conducting it, the lawyer will be confronted with situation where, if not technically, at least in substance he will violate the spirit of the Canons, particularly that precluding advertising and solicitation." (Legal Ethics, H.S. Drinker, pp. 221-222.)
In Opinion No. 57 the American Bar Association said:
"It is not necessarily improper for an attorney to engage in a business; but impropriety arises when the business is of such a nature or is conducted in such a manner as to be inconsistent with the lawyer's duties as a member of the Bar. That an inconsistency arises when the business is one that will readily lend itself as a means for procuring professional employment for him, is such that it can be used as a cloak for indirect solicitation on his behalf, or is of a nature that, if handled by a lawyer, would be regarded as the practice of law. To avoid such inconsistencies it is always desirable and usually necessary that the lawyer keep a business in which he is engaged, entirely separate and apart from his practice of the law and he must, in any event, conduct it with due observance of the standards of conduct required of him as a lawyer."
Informal Opinion No. C682 sanctions an attorney conducting a business, in addition to his practice of law. Formal Opinion No. 233 held that certain services, including tax consultants, are so related to the practice of law, that solicitation by a lawyer for rendition of such services is solicitation of "professional employment." Canon 2, DR 2-101, of the Code of Professional Responsibility provides that a lawyer shall not publicize himself . . . except as permitted under DR 2-103. Formal Opinion No. 234 held that an attorney conducting an income tax service, may not solicit clients even though the proposed advertising made no mention that legal services were available, nor identified the preparer by name. It is the writer's opinion that it would be improper for the attorney to solicit tax clients in the manner suggested regardless of the proposed separation of his legal practice from the tax preparation business.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The Committee reviewed this opinion on October 1, 1976 and determined that the conclusion is still valid. State Bar Rule 2 is now found in Rules 2?101 through 2-104.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.