Ohio Board Advisory Opinion Op 92-015

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 92-15
Issued August 14, 1992
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A law firm violates Disciplinary Rule 3-101 (A) when it renders legal services to
assist in the unauthorized practice of law by a business corporation. A law firm violates
Disciplinary Rules 5-107 (B), 3-102 (A), 5-107 (A) (1), 2-103 (B) and 3-103 (A) when it allows a
business corporation to act as an improper intermediary between a lawyer and a consumer in need
of legal services. Therefore, it would be improper for a law firm to assist a business corporation in
marketing legal forms when the sale of such forms includes issuance of advice and counseling,
preparation and drafting, and instructions on proper execution of the legal documents.
OPINION: A law firm has been retained by a business corporation to perform services related to
the corporation's marketing of wills, durable powers of attorney, and living wills. The law firm
inquires as to whether it would violate the Code of Professional Responsibility to provide the
proposed services.
The business corporation plans to place advertisements in regional publications to solicit mail and
telephone orders for wills, living wills, and powers of attorney. Educational videotapes would be
sent to consumers responding to the advertisements explaining the forms requested, asking for
information needed to prepare the forms, and offering to make an attorney available to discuss
complicated estate plans not addressed by the basic forms. Once the consumer would supply the
necessary information, the legal forms would be prepared and sent to the consumer along with an
instructional video explaining the proper execution of the legal documents.
The law firm would be asked to assist in writing, producing and appearing in the videotapes, to
assist in preparing the basic forms to be used, to assist in preparing the finished documents
requested by the consumer, and to be available for direct questions by consumers either through the
mail or by telephone. The law firm would have full approval of all advertising. The law firm
would be paid for the above services, including an hourly fee for each document prepared.

Op. 92-15 2
Under Disciplinary Rule 3-101 (A) of the Code of Professional Responsibility "[a] lawyer shall not
aid a non-lawyer in the unauthorized practice of law." Therefore, the Board must consider whether
the proposed activities of the business corporation constitute the unauthorized practice of law.
Unauthorized practice is broadly defined in Governing Bar Rule VII (2) (A) of the Supreme Court
Rules for the Government of the Bar of Ohio. As defined by the rule, "[t]he unauthorized practice
of law is the rendering of legal services for others by anyone not registered under Rule VI
[Registration of Attorneys] or certified under Rule II [Limited Practice of Law by Legal Interns], or
Rule XI [Limited Practice of Law by Foreign Legal Consultants] of the Rules for the Government
of the Bar of Ohio."
The acts that constitute the rendering of legal services are described by the Supreme Court of Ohio
in case law. In Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 28 (1934) the
Supreme Court stated that
[t]he practice of law is not limited to the conduct of cases in court. It embraces the
preparation of pleadings and other papers incident to actions and special proceedings
and the management of such actions and proceedings on behalf of clients before
judges and courts, and in addition conveyancing, the preparation of legal
instruments of all kinds, and in general all advice to clients and all action taken for
them in matters connected with the law. (quoting People v. Alfani, 227 N.Y. 334,
125 N.E., 671, 1919).
In Judd v. City Trust & Savings Bank, 133 Ohio St. 81, 86 (1937), the court described the acts in
the above cited definition as the "performance of legal services for others."
In Stark County Bar Ass'n v. Beaman, the Board of Commissioners on the Unauthorized Practice of
Law reviewed a non-attorney's use of a videotape and a brochure as a sales tool to explain probate
and trust law and the operation and tax consequences of a revocable living trust prepared by the
non-attorney. 60 Ohio Misc. 2d 17 (1990). In Akron Bar Ass'n v. Singleton, the same board
considered a-non-attorney's sale of a "dissolution kit" through which the client completes an
information sheet and the non-attorney prepares the petition for dissolution of marriage, separation
agreement, decree of dissolution, visitation order and child support forms and then meets with
client to explain the forms and procedures for filing the documents. 60 Ohio Misc. 2d 19, 1990. In
both Beaman and Singleton, the Board of Commissioners on Unauthorized Practice of Law
determined that the non-attorneys had engaged in the unauthorized practice of law, and authorized
the bar associations to commence an action in a court of competent jurisdiction to obtain a judicial
determination. Beaman, 60 Ohio Misc. 2d at 19, Singleton, 60 Ohio Misc. 2d at 20.

Op. 92-15 3
The question presented this Board raises concerns regarding the unauthorized practice of law. It
also raises concerns regarding an improper intermediary interfering with a lawyer and a consumer
in need of legal services. First, there could be improper influence by the corporation as to the
lawyer's legal judgment on behalf of the consumers in violation of the requirement of Disciplinary
Rule 5-107 (B) that "[a] lawyer shall not permit a person who recommends, employs, or pays him
to render legal services for another to direct or regulate his [her] professional judgment in rendering
such legal services." Second, since the consumers would be receiving legal services through the
business corporation, the lawyers would be involved in improper division of legal fees with a non-
lawyer in violation of Disciplinary Rule 3-102 (A). Third, since the law firm is compensated by the
business corporation but gives legal advice to both the business and the consumers of the business,
there could be a violation of Disciplinary Rule 5-107 (A) (1) that "[e]xcept with the consent of his
[her] client after full disclosure, a lawyer shall not: [a]ccept compensation for his [her] legal
services from one other than his [her] client." Fourth, the law firm lends value to the services of the
business by allowing it to offer the lawyer's services to the consumers, therefore there is improper
compensation for a referral as prohibited in Disciplinary Rule 2-103 (B). Finally, although there is
an attorney client relationship between the law firm and the business corporation, the structure of
the proposed plan gives the appearance of a business relationship rather than a professional
relationship, thereby possibly running afoul of Disciplinary Rule 3-103 (A) that prohibits a lawyer
from forming a partnership with a non-lawyer when any activities of the partnership consist of the
practice of law.
In conclusion, it is this Board's view that the business corporation's proposed sale of legal forms to
consumers falls squarely within the activity proscribed by the Ohio courts and by the Board of
Commissioners on Unauthorized Practice of Law since it includes the issuance of advice and
counseling, preparation and drafting, and instruction on the proper execution of the legal
documents. In essence, the business corporation would be practicing law with the assistance of the
firm's lawyers. Thus, this Board advises that a law firm violates Disciplinary Rule 3-101 (A) when
it renders legal services to assist in the unauthorized practice of law by a business corporation. A
law firm violates Disciplinary Rules 5-107 (B), 3-102 (A), 5-107 (A) (1), 2-103 (B) and 3-103(A)
when it allows a business corporation to act as an improper intermediary between a lawyer and a
consumer in need of legal services. Therefore, it would be improper for a law firm to assist a
business corporation in marketing legal forms when the sale of such forms includes issuance of
advice and counseling, preparation and drafting, and instructions on proper execution of the legal
documents.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions regarding
the application of the Supreme Court Rules for the Government of the Bar of Ohio, the
Supreme Court Rules for the Government of the Judiciary, the Code of Professional
Responsibility, the Code of Judicial Conduct, and the Attorney's Oath of Office.