Opinion #158. Formation of a Partnership With a Non-Lawyer for the Provision of a Governmental Services Including Lobbying

Issued by the Professional Ethics Commission

Date Issued: April 3, 1997

Facts

Attorney A has been practicing law as well as working as a lobbyist in the legislature in Augusta. Attorney A now proposes to form a partnership with a lay person to perform and provide government relations services, including lobbying. Aside from the provision of these government relations services, Attorney A does not propose to engage in the practice of law.

Question

Does the formation of a partnership with a non-lawyer for the provision of governmental services, including legislative lobbying, violate the provisions of Bar Rule 3.2(a)(2), which provides: “A lawyer shall not form a partnership or a professional corporation with a person not licensed to practice law if any of the activities of the partnership or corporation consist of the practice of law?”

Answer

For purposes of the construction of Rule 3.2(a)(2)[1], with respect to persons on the roll of active attorneys maintained by the Board of Overseers, the practice of law consists of the provision of services that lawyers typically provide, notwithstanding that lay persons may also lawfully provide the same services. This view has been generally accepted in the context of considering whether lay-lawyer partnerships violate the prohibition of codes of professional responsibility, ABA Formal Opinion #297.

Among the purposes of Rule 3.2(a)(2) is to assure that the Court and the Board of Overseers and its subordinate regulatory bodies are able to regulate members of the profession effectively (see Reporter’s Notes to Rule 3.2(a)). In the field of legislative lobbying, and the somewhat broader category of governmental relations services, both lawyers and non-lawyers provide very similar services. These may include the drafting and interpretation of laws, and representation before government agencies. It is reasonable to assume that the person selecting as a lobbyist a lawyer rather than a lay person does so in anticipation of a higher degree of legal skill, in the expectation of adherence to more stringent standards of professional conduct, or under the assumption that the relationship between lawyer-lobbyist and client will give rise to a confidential relationship. It should be obvious that for a lawyer to associate herself as a partner of a non-lawyer in the rendition of such services creates an intolerable risk of confusion, or worse, misplaced reliance. Thus, to the extent that lawyer A proposes to undertake a partnership with a lay person while continuing to maintain the status of an attorney on Board of Bar Overseers’ roll of active lawyers, such a relationship would violate the provisions of Rule 3.2(a)(2).

The Bar Rules do offer a lawyer the option of assuming inactive status under Bar Rule 6(c). If Attorney A were to assume inactive status pursuant to Rule 6(c), such a partnership would be permissible, provided that Attorney A does not hold herself out as a lawyer. Attorney A must make clear to her government relations clients that her role is not that of an attorney, and they will not benefit by the protection offered by the lawyer-client relationship.

Bar Rule 7.3(i)(2) details a number of requirements imposed upon attorneys who assume inactive status[2]. The clear purpose of these requirements is to make very clear to former and prospective clients of the inactive lawyer that the lawyer has ceased to function as an attorney and that the client must seek legal services elsewhere. That having been said, there remains a significant risk that, even assuming compliance by the inactive attorney with the directives of Bar Rule 7.3(i)(2), she may not succeed in making the client - especially the former client - aware of the change in her status[3]. The burden necessarily resides with Attorney A to make the consequences of her altered status absolutely clear to all clients.

The adoption, effective February 15, 1997 of Amendments to the Bar Rules relating to the provision of “law-related services” does not alter the views expressed in this opinion. If anything the text of the new Rule 3.2(h) reinforces our concerns:

(1) A lawyer shall be subject to the Code of Professional Responsibility with respect to the provisions of law-related services, as defined in paragraph (2), if the law-related services are provided:
(i) by the lawyer in circumstances that are not distinct from the lawyer’s provision of legal services to clients; or
(ii) by a separate entity controlled by the lawyer individually or with others if the lawyer *fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services of the separate entity are not legal services and that the protections of the client-lawyer relationship do not exist*. (emphasis added)

Specifically, Rule 3.2(h)(1)(i) does not suggest, nor do we perceive that legislative lobbying performed by a lawyer can ever be distinct from the rendition of legal services[4]. Thus, the rendition of services by the lawyer would in any event be governed by the substance of this opinion, rather than by Rule 3.2(h).

Furthermore, since Attorney A does not propose to render any other legal services along with the lobbying and governmental relations services, and because the definition of law-related services in the rule[5] limits the scope of the rule to situations in which both legal services and law-related services are being rendered, the provisions of Rule 3.2(h) do not by their terms apply at all, so that, upon the facts set forth in the inquiry, the recent adoption of this Rule would have no effect whatsoever upon this opinion.


Footnotes

[1] The definition we utilize for the purpose of construction of this rule is broader than that employed by the Department of the Attorney General in enforcing the prohibitions against the unauthorized practice of law. Our definition is rooted in the regulatory purposes of the Bar Rules; it is designed to protect the public in its dealings with lawyers - with members of the Bar; the definition utilized in the context of the unauthorized practice of law is designed to protect the public from those who are not licensed.

[2] These include notifying clients, and, in the case of litigation, opposing counsel, of assumption of inactive status and of consequent inability to act as an attorney, and advising clients to seek alternative counsel. While these requirements set forth in the Bar Rules are the minimum required, they may not in all cases be sufficient to put all clients on notice of the changed status of the attorney.

[3] As pointed out above, government relations clients may not understand that any communications with A are not subject to the lawyer-client privilege and that A could be compelled to testify about the content of these communications.

[4] The Commission finds it difficult to conceive of any law-related services that would not, if rendered by a lawyer, constitute the practice of law, for purposes of Rule 3.2(a)(2). The Advisory Committee notes appear to be inclusive rather than exclusive:

In Maine the scope of “law-related services” as opposed to legal services may be quite broad, in view of the indefinite meaning of “unauthorized practice”. It may be that in this jurisdiction any service other than litigation is a “law-related service”. Familiar examples would include, however, the preparation of a federal income tax return, lobbying and such activities as real estate brokerage and marital counseling.
At the present time, title insurance is the most common example of law-related services provided through a separate entity by a Maine law firm. See, however, Me. Prof Ethics Comm’n, Op. No. 118. The applicability of the Bar Rules to captive title insurance agencies has been raised only in connection with the practice of receiving a commission on the sale of a title policy. [citations omitted]

[5] “The term “law-related services” denotes services that might reasonably be performed in conjunction with and in substance are related to the provision of legal services, and that are not prohibited as unauthorized practice of law when provided by a non-lawyer.” (emphasis added)


Enduring Ethics Opinion

Enduring Ethics Opinion #158 [October 2010]