BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1993-6

(Inquiry No. 455 )

Re:
Tax preparation service advertising “Tax Lawyer on staff.”

Digest:
Improper for accountant/lawyer employee of tax preparation service to permit employer’s advertisement to provide “Tax Attorney – C.P.A. – Registered Rep on Staff.”

Code Provisions:
Judiciary Law §479
Judiciary Law §495
DR 2-101
DR-2-101(A)
DR 2-103(C)
DR 2-103(E)
DR 3-101(A)

Described Facts:
Inquiring counsel, who is also a Certif ied Public Accountant, is employed by a tax preparation service. The employer proposes running an advertisement indicating “Tax Attorney – C.P.A. – Registered Rep on Staff.” The inquiring counsel would provide accounting services to customers of the employer and receive a salary from the employer for said services. The attorney might also from time to time provide legal services for the customers but would be paid therefor directly by the customers.

Inquiry:
May the advertisement of the employer indicate that a tax attorney is on staff?

Determination:
The advertisement of the employer may not indicate that a tax attorney is on staff.

Analysis:
DR 3-101(A) provides that “A lawyer shall not aid a non-lawyer in the unauthorized practice of law.” The proposed advertisement creates the impression that the employer will be providing legal services or assistance to customers. For the lawyer to permit such advertisement would, in the view of this committee, be aiding a non-lawyer in the unauthorized practice of law. This would, of course, be reinforced if the lawyer would render legal services to the customers as part of the package being offered by the employer.

While this Committee does not opine on questions of law, inquiring counsel’s attention is directed to Judiciary Law §479 which makes it unlawful “for any person … to solicit or procure through solicitation a retainer … or any agreement authorizing an attorney to perform or render legal services” and §495 which provides that no corporation (other than an attorney professional corporation) shall “(d) furnish attorney or counsel, nor … (h) advertise that either alone or together with or by or through any person whether or not a duly and regularly admitted attorney-at-law, it has … an office … for furnishing legal advice, services or counsel.”

To the extent that the advertisement violates the above cited sections of the Judiciary Law, DR 2-103(E) requires that the attorney not accept legal employment resulting therefrom. See Nassau county Opinion #80-1, where this committee held that an attorney may not be associated with advertising that fails to comply with the rules.

DR 2-103(C) provides that a lawyer shall not request a person or organization to recommend or promote the use of the lawyer’s services, other than by advertising or pUblicity not proscribed by DR 2-101 (with exceptions not here applicable). Because the advertisement in question at best is misleading in that it indicates legal services and counselling will be provided, it violates DR 2-101(A).

[Approved by the Executive Subcommittee on 02/09/93; Approved by the Full committee on 3/2/93]