ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
Year 1987 Ethics Opinions
THE ASSOCIATION OF
THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1987-1
PROFESSIONAL AND JUDICIAL ETHICS
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February 23, 1987
Lawyer X has been approached by
Ms. Z, who wishes to rent space in Lawyer X's office suite. Ms.
Z, who is not an attorney, intends to form a corporation for the
purpose of offering arbitration and mediation services to the
public. Ms. Z has informed Lawyer X that she wishes to advertise
the fact that she conducts her mediation business at the law
offices of Lawyer X's firm. Lawyer X is of the view that
"the purpose of such advertisement would be to convey
respectability and accountability to the corporation's
Lawyer X asks whether her law firm
may allow Ms. Z to advertise, in any of several ways, the fact
that Ms. Z conducts her mediation service at the offices of
Lawyer X's firm. In the Committee's view, it would be improper
for Lawyer X's firm to permit its name to be used by Ms. Z in her
DR 2-101(A) prohibits the
involvement of lawyers in "the preparation or dissemination
of any public communication containing statements or claims that
are false, deceptive, [or] misleading". The Committee
believes that Ms. Z's proposal would cause Lawyer X to run afoul
of this proscription against misleading advertising in several
1. Ms. Z's proposed advertising is
misleading because it is likely to convey to the public the
impression that Lawyer X's law firm operates, endorses, or in
some way stands behind Ms. Z's mediation service when Lawyer X
has expressly disavowed any such relationship. On the other hand,
if the implication of an endorsement or some sort of guarantee
were true, the advertising would still contravene the lawyer's
ethical obligation. In essence, Lawyer X's firm would be lending
its name to a nonlawyer to enhance the nonlawyer's stature. In
the Committee's opinion, such conduct is unethical. Cf. Texas Op.
2. The Committee is also of the
opinion that Ms. Z's proposed advertising would be deceptive in
appearing to suggest to the public that Lawyer X's firm and Ms.
Z's business are in some way affiliated. To the contrary,
however, Lawyer X has acknowledged that Ms. Z's mediation
business is not affiliated with Lawyer X's firm. Consequently,
such an implication would be improper, and would be improper
under any circumstances because an attorney may not ethically
enter into a partnership with a layperson if that partnership may
provide legal services. See EC 2-13; DR 3-103(A) (precluding
attorney from forming a partnership with layman). See also N.Y.
State 557 (1984); cf. Tennessee Op. 83-F-39 (1983); Michigan Op.
CI-554 (1980). In the words of N.Y. City 80-25, "[e]ven if
the services performed by [Ms. Z's firm] may be done by a lay
person, the services [presumably provided by Ms. Z] involve
activities, which when performed by a lawyer, may well involve
the practice of law."
3. In addition to being
misleading, if Lawyer X's firm permitted its name to be used in
conjunction with Ms. Z's advertising, the result would be
tantamount to encouraging the unauthorized practice of law by Ms.
Z. The Committee believes that such an advertising ploy would
imply that Ms. Z's mediation service would offer legal services,
either directly or through Lawyer X's firm. Ms. Z is not
authorized to provide legal services, see Judiciary Law § 478,
so she may not hold herself out as offering legal services.
Similarly, Lawyer X's firm may not "take any action which
would suggest to the public that [Ms. Z's] firm is offering
[Lawyer X's] legal services as part of its services." N.Y.
City 79-7. See also N.Y. City 80-25. Accordingly, it would be
improper for Lawyer X's firm to allow Ms. Z to use its name in
her advertising because of the likelihood that it would permit
Ms. Z to obtain clients who are seeking legal assistance. See
N.Y. City 81-105 ("There is, of course, nothing inherently
unethical about a lawyer sharing offices with a nonlawyer. The
principal risk of such office-sharing arrangements is the danger
that the public will be led to believe that the nonlawyer is an
attorney engaged in legal practice. But if the lawyer takes care
to avoid that impression, then office-sharing alone does not
violate Canon 3.").
For the foregoing reasons, the
Committee answers the inquiry in the negative.