Ethics Opinions

ETHICS OPINION NO. 15
OF THE MISSISSIPPI BAR

RENDERED Saturday, March 16, 1968

Editor's Note: See DR2-102(D); No. M.R.P.C. Counterpart

BUSINESS ACTIVITIES-Improper for a lawyer to engage in a business or another profession when it is of such a nature or is so conducted as to be inconsistent with his duty as a member of the Bar.

RULE 27 Rules of Professional Conduct, Mississippi State Bar. 

An opinion from the Ethics Committee of the Mississippi State Bar has been requested on the following question: 

Can an attorney actively practice law and actively engage in another profession or a business such as real estate or insurance? If an attorney can do so, may the location of his other professional office or his real estate or insurance office be the same or adjacent to his law office and, if so, what are the ground rules concerning advertising by an attorney in his other active occupation? 

There is nothing in the rules of professional conduct to prevent a lawyer from engaging in an independent business or profession entirely distinct from an unrelated to his law practice, provided he in no way uses such occupation to advertise, or as a feeder to his law practice. Where the second occupation, although theoretically distinct, is one closely related to the practice of law, it is particularly important that the lawyer keep any such business entirely separate and apart from his practice of the law, so as to avoid a violation of the spirit of the rules of professional conduct, particularly those precluding indirect advertising and solicitation. 

With regard to engaging in a profession such as the practice of medicine, this Committee approves and adopts the reasoning of Formal Opinion 183 of the American Bar Association Standing Committee on Professional Ethics. In that opinion it is stated: 

. . . Though it is not improper per se to engage in the practice of two professions simultaneously, it would seem essential that the lawyer-physician recognize the particular professional capacity in which he is acting in each instance of the performance of professional services . . . 

Formal Opinion No. 183 has been summarized as follows: 

It is improper for an attorney-physician to include on his letterhead both 'attorney at law' and 'doctor of medicine', reference to both degrees, or the phrase 'medical jurisprudence'. 

It is improper for an attorney-physician to send out announcements to the effect that he has established offices for the general practice of both law and medicine at a specified address. 

An attorney-physician may not send announcements to other attorneys stating that he is specializing in 'medical jurisprudence' when he is not confining his practice in that field to rendering service to other attorneys.

ABA Opinions on Professional Ethics. (1967). p. 455. See, also, Informal Opinion No. 896 of the ABA Standing Committee. 

In Formal Opinion No. 297, in discussing the status of a lawyer who is also a Certified Public Accountant, the ABA Standing Committee said: 

. . . It is a violation of Canon 27 for a lawyer to hold himself out as qualified to practice both law and accounting. The fact that the holding out is at two separate places is not significant. The dual holding out is a violation of Canon 27 because it constitutes self-touting, and because the lawyer-accountant firm would almost inevitably serve as a feeder to the legal firm. 

The person who is qualified as both a lawyer and an accountant must choose between holding himself out as a lawyer and holding himself out as an accountant . . . 

If he elects to hold himself out as an accountant, he must not practice law or he will violate Canon 27 in that he will be using his activity as an accountant to feed his law practice . . . 

If he elects to hold himself out as a lawyer, he will not violate any Canon of Ethics merely because in rendition of legal services he utilizes and applies accounting principles . . . 

Formal Opinion 297 was clarified in Formal Opinion 305, which may be summarized as follows: 

Although a person qualified as both a lawyer and an accountant must choose between holding himself out as a lawyer and holding himself out as an accountant, the mere fact that a person qualified and holding himself out as an accountant has also been licensed to practice law should not in itself bar him from engaging in all the activities that an accountant may lawfully engage in. 

The holding in Formal Opinion No. 297 was reaffirmed in Informal Opinion No. 565. 

With regard to engaging in an independent business, we note the language of the American Bar Committee in its Formal Opinion No. 57, which dealt with the propriety of a lawyer's conducting an "Insurance Adjusters' Bureau" from his law office: 

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. Such 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 any 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. 

If such business and his law practice should be conducted from the same office, the public could not be expected to distinguish between his dual capacities and know when he is acting in the capacity of a lawyer and when in that of a layman. 

In Informal Opinion No. 775, dated February 15, 1965, the ABA Standing Committee reviewed a number of decisions concerning the propriety of a lawyer's engaging in an independent business, and said: 

The Committee's basic criteria in this area apparently have changed over the years from the earlier tests set forth in Opinion 57 of whether the business or activity is such that it will 'readily lend itself or 'can be used' as a feeder to a law practice, to the test used in Opinion 234 and Opinion 272, of whether business or other activity 'will inevitably serve' as a feeder to a law practice. (Emphasis by the ABA Committee) 

The Committee's present opinion, developed over the years as outlined above, is that 

1. If a separate business is clearly not necessarily the practice of law when conducted by a lawyer, and 
2. If it can be conducted in accordance with and so as not to violate the Canons, and 
3. If it is not used or engaged in such a manner as to directly or indirectly advertise or solicit legal matters for the lawyer as a lawyer, and 
4. If it will not 'inevitably serve' as a feeder to his law practice, and 
5. It is not conducted in or from a lawyer's law office, except in cases where the volume of the law practice and business is so small that separate quarters for either is not economically feasible and where, even in such cases, there is no indication on the shingle, office, door, letterhead or otherwise that the lawyer engages in any activity therein except the practice of law, it is not necessarily a violation of the Canons for a practicing lawyer to engage in such a business activity. The Committee is of the further opinion that the real estate brokerage business can qualify under these present criteria. The Committee recognized, however, that this is a difficult problem of legal ethics and admonishes that a practicing lawyer who also engages in the business of a real estate broker must use the most scrupulous care to so conduct the real estate business as to avoid offending the ethics of our profession and to keep his legal and real estate activities segregated and separate. The real estate business must not be used or permitted to directly or indirectly advertise him as a lawyer or to solicit legal employment for him. Under no circumstances should the real estate business be conducted in or adjacent to the lawyer's law office if it advertises in any manner; nor in such circumstances (advertising and solicitation of real estate business) may it be conducted in the lawyer's name, but instead would have to be conducted under corporate or other name not including the name of the lawyer. Since the real estate business is so close to the practice of law in many respects, we do not believe that under any circumstances would it be ethical for a lawyer to divide real estate commissions earned as a result of his efforts with a non-lawyer, or to engage in it with a non-lawyer, because of Canons 33 and 34 and, possibly, Canon 47. Also, the lawyer would be required, without exception, to refuse to act as a lawyer in connection with a transaction initiated by him as a broker, and he should be most hesitant to act as a lawyer for a person he first had contact with while acting as a broker.

While, for the reasons stated, the Committee does not consider it to be necessarily unethical to practice law and concurrently, but in different transactions, engage in the real estate business, the Committee is of the opinion that to do so in accordance with the Canons is so difficult that suspicions of unethical conduct are almost inevitable. For that reason alone, it is our opinion that only a very few lawyers will expose themselves to such suspicions on the part of their brother lawyers and the public. The lawyer who does so must be willing to undertake the tremendous burdens of conducting his real estate business ethically under our Canons, and if a question of unethical conduct is raised, the burden undoubtedly will be on him to establish the propriety of his conduct. (Emphasis by the ABA Committee) 

In Informal Opinion No. 931, dated May 7, 1966, ABA Committee said: 

While Informal Opinion No. 775 related to a practicing lawyer also engaging in the real estate business in a large urban center, we consider the principles and guidelines stated in that opinion to be applicable in your smaller community. 

We recognize, of course, that conditions in large population centers and small communities may be quite different. However, all lawyers, wherever they practice, must be guided by the same basic ethical considerations. 

Direct or indirect advertising or solicitation is unacceptable in any size of community. 

We approve the principles and guidelines stated by the ABA Committee in its Informal Opinions No. 775 and 931. This Committee is also of the opinion that such principles and guidelines are applicable to a lawyer's engaging in the insurance business.