Ohio Board Advisory Opinion Op 92-017

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 92-17
Issued October 16, 1992
Withdrawn by Adv. Op. 2023-10
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio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.]
[Not current-subsequent rule amendments to DR 2-103(A), DR 2-104(A); 2-103(B); expressing the rules in gender
neutral language.]
SYLLABUS: A corporation's lawyer may not provide private legal representation to the
corporation's clients on matters relating to issues on which the corporation has worked. A
corporation's attorney available to privately represent the corporation's clients adds value to the
corporate services and thus improperly compensates the corporation for a recommendation of
professional employment. A lawyer must not allow a corporation to serve as an improper
intermediary between a lawyer and a client.
OPINION: The question presented is whether a lawyer employed as general counsel for a
business corporation providing tax consulting services may, on occasion, privately represent clients
of the corporation in legal proceedings with tax officials concerning matters relating to issues on
which the corporation has worked. The question raises multiple ethical issues--potential conflicts
of interest, improper division of fees, unauthorized practice of law, and improper recommendation
of professional employment.
Conflicts of Interest
Two types of conflicts of interest could occur as a result of the proposed conduct. First, a lawyer's
loyalty to the corporation could impair his or her representation of a corporate client. Second, a
corporate lawyer's own interests could impair his or her representation of the corporate client's
interests.
A lawyer employed or retained by a corporation owes allegiance to the corporation, not to a
corporate client. See Code of Professional Responsibility, EC 5-18. This allegiance to the
corporation makes multiple representation of the corporation and its clients difficult due to the
potentially differing interests and loyalties. However, multiple representation is not prohibited by
the Code of Professional Responsibility. Under Disciplinary Rule 5-105 (A), (B), and (C), multiple
representation is permitted under two conditions: 1) it must

Op. 92-17 2
be "obvious" that the lawyer can adequately represent the interest of each client and 2) each client
must "consent" to the representation after '"full disclosure" of the implications of the multiple
representation. Under Disciplinary Rule 5-101 a lawyer cannot accept employment if the exercise
of professional judgment on behalf of the client will be or reasonably may be affected by the
lawyer's own interest, except with client consent after full disclosure. The proposed representation
would have to meet these conditions in order to be proper under Disciplinary Rules 5-105 and 5-
101.
Division of Fee
A concern is that a corporate attorney might improperly share legal fees with the corporation.
Under Disciplinary Rule 3-102, with exceptions not applicable here, a lawyer may not share legal
fees with a non-lawyer. However, this concern could be overcome by a corporate lawyer billing
the corporate client directly for private legal services. In so doing, there would not be a sharing of
legal fees with the corporation and thus, there would be no violation of the rule prohibiting division
of fees with a non-lawyer.
Unauthorized Practice of Law
Another concern is that the business corporation would practice law through the corporation's
attorney. Under Disciplinary Rule 3-101, "[a] lawyer shall not aid a non-lawyer in the
unauthorized practice of law." However, according to the requester, the corporation does not
engage in the practice of law, nor does it hold itself out as engaging in the practice of law. The
requester notes that the private representation would occur only occasionally, and is not a routine
service offered to corporate clients. Nevertheless, if such representation occurred routinely there
could arise questions regarding whether the corporation was in essence engaging in the practice of
law.
A related concern is whether a corporation would try to control or influence a corporate lawyer's
judgment in his or her private representation of a corporate client. Under Disciplinary Rule 5-107
(B) "[a] lawyer shall not permit a person who recommends, employs, or pays him [her] to render
legal services for another to direct or regulate his [her] professional judgment in rendering such
legal services." Thus, it would be improper for the lawyer to allow this type of interference from a
corporation. Further, a lawyer could be assisting in the unauthorized practice of law if non-lawyers
in the corporation are involved in rendering legal advice to the company's client or in directing or
regulating the lawyer's professional judgment.

Op. 92-17 3
Recommendation
Improper recommendation of professional employment is another potential problem that could
occur if a business corporation's lawyer becomes involved with legal representation of corporate
clientele. The Code contains several key provisions governing the recommendation of professional
employment. DR 2-103(A) states:
A lawyer shall not recommend employment as a private practitioner, of himself
[herself], his [her] partner, or associate to a layperson who has not sought his [her]
advice regarding employment of a lawyer, except as provided in DR 2-101 [a rule
governing advertising].
Disciplinary Rule 2-104(A) states:
A lawyer who has given unsolicited advice to a layman that he [she] should obtain
counsel or take legal action shall not accept employment resulting from that advice,
except that [exceptions not applicable to this opinion].
Disciplinary Rule 2-103(B) states:
A lawyer shall not compensate or give any thing of value to a person or organization
to recommend or secure his [her] employment by a client, or as a reward for having
made a recommendation resulting in his [her] employment by a client, except that he
[she] may pay the usual and reasonable fees or dues charged by any of the
organizations listed in DR 2-103(D).
Under these rules, three things are improper: 1) it is improper for the lawyer to recommend
employment of himself or herself to a layperson when the layperson has not sought the lawyer's
advice; 2) it is improper to accept employment arising from unsolicited advice to a layperson that
he or she should obtain counsel, and 3) it is improper to compensate or give a thing of value to a
person or organization to recommend or as a reward for recommending the lawyer's employment
by a client. It is the Board's view that it would be virtually impossible for a corporation's lawyer to
accept employment to provide private representation on legal matters for a client of the corporation
without there being a violation of these disciplinary rules.

Op. 92-17 4
In Ohralik v. Ohio State Bar Association, 436 U.S. 447, 449 (1978) the Supreme Court held that
"the state--or the Bar acting with state authorization--constitutionally may discipline a lawyer for
soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the
State has a right to prevent." Within the context of a corporation's lawyer seeking private
representation of clients of the corporation, there exists the opportunity for undue influence,
intimidation, overreaching, and other forms of vexatious conduct. Therefore, under Disciplinary
Rule 2-103 (A), it would be improper for an attorney who serves as general counsel for a
corporation to solicit corporate clients in person with regard to private representation on legal
matters, including those matters relating to issues on which the corporation has worked.
Further, an attorney for a corporation could not request that the corporation recommend or promote
the use of his or her services as a private practitioner, because to do so would violate Disciplinary
Rule 2-103. Ethical Consideration 2-8 of the Code sagely reminds lawyers "[a] layman is best
served if the recommendation is disinterested and informed. In order that the recommendation be
disinterested, a lawyer should not seek to influence another to recommend his [her] employment."
Finally, the corporate attorney faces an ethical problem even if it is the corporate officer or
employee, not the attorney, who makes the recommendation to the corporate client. Under
Disciplinary Rule 2-103(B), an attorney must not reward or compensate the corporation for the
referral.
Providing free services or even discounted legal services is considered reward or compensation.
See Ohio SupCt Bd of Comm’rs on Grievances and Discipline, Op. 88-12 (1088) (Even if a lawyer
does not request a funeral director to recommend the lawyer's services, by giving one hour of free
consultation the lawyer compensates the funeral director for a recommendation because the legal
services add value to the funeral package.). See also, Ohio Sup Ct Bd of Comm’rs on Grievances
and Discipline, Op. 89-31 (1989) (An attorney may not be employed by a certified public
accountant's firm to practice law for the firm's accounting clients.).
As to the facts presented, a corporation's attorney available to privately represent the corporation's
clients adds value to the corporate services and thus improperly compensates the corporation for a
recommendation of professional employment. A lawyer must not allow a corporation to serve as
an improper intermediary between a lawyer and a client.

Op. 92-17 5
Conclusion
As a result of these multiple ethical concerns, several ethics committees advise that corporate
counsel may not provide legal services to corporate clients. See Iowa State Bar Ass'n, Op. 80-46
(1980), Tennessee SupCt Bd of Professional Responsibility, Formal Ethics Opinion Nos. 84-F-74
(1984), 83-F-44 (1983) and 83-F-44 (a) (1983).
In contrast, an ethics committee permits a lawyer for a corporation to provide legal services to
corporate clients so long as certain safeguards are imposed. See State Bar of Michigan, CI 740
(1982) (advising that corporate counsel may render legal services to clients of a corporation only
after disclosure of potential conflicts of interest and consent, and provided these parties are billed
directly by the attorney, and the attorney does not share fees with the corporation). However, one
ethics committee has expressed "substantial concern" that a lawyer serving as in-house counsel for
an engineering consulting company and giving legal counsel to company clients risks violations
regarding professional independence, unauthorized practice of law, and conflicts of interest. See
Philadelphia Bar Ass'n, Op. 89-1 (1989).
In conclusion, it is this Board's opinion that a corporation's lawyer may not provide private legal
representation to the corporation's clients on matters relating to issues on which the corporation has
worked. Although ethical concerns regarding potential conflicts of interest, improper division of
fees, and unauthorized practice of law might be resolved through proper adherence to disciplinary
rules, it would be impossible to comply with disciplinary rules regarding recommendation of
professional employment. A corporation's attorney available to privately represent the
corporation's clients adds value to the corporate services and thus improperly compensates the
corporation for a recommendation of professional employment. A lawyer must not allow a
corporation to serve as an improper intermediary between a lawyer and a client.
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.