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ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK

FORMAL OPINION 1987-1

COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS

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February 23, 1987

ACTION: Formal Opinion

OPINION:

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 prospective clients."

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 company's advertisements.

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 ways:

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. 426 (1985).

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.


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