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A LAWYER WHO AS A C.P.A. IS PRACTICING PUBLIC ACCOUNTING IN A
FIRM MAY NOT ALSO PRACTICE LAW IN SUCH FIRM. THE LAWYER MAY SEPARATELY,
INDEPENDENTLY AND OUTSIDE THE ACCOUNTING FIRM "PRACTICE LAW",
BUT IF HE DOES, THEN ALL OF HIS ACTIVITIES AS AN ACCOUNTANT IN
THE ACCOUNTING FIRM ARE SUBJECT TO ALL THE REQUIREMENTS OF THE
CODE OF PROFESSSIONAL RESPONSIBILITY.
QUESTION
PRESENTED
A member of the Bar who is also a Certified Public Accoutant has
entered into a partnership of C.P.A.'s to practice accounting. He
asks whether he can probate estates and do legal work under an arrangement
whereby his legal fees are not divided with the Accountants.
CANON INVOLVED
The canon directly involved is DR 2-102(E), reading as follows:
(E) A
lawyer who is engaged both in the practice of law and another profession
or business shall not so indicate on his letterhead, office sign,
or professional card, nor shall he identify himself as a lawyer
in any publication in connection with his other profession or business.
DISCUSSION
The problem of dual practice in law-related professions under the
new Code of Professional Responsibility is the subject of Formal
Opinion 328 of the American Bar Association. As pointed out therein,
there is now no absolute prohibition of dual practice, but there
are many restrictions and limitations on such dual practice. In
this regard the new Code constitutes a modification in some respects
of the former restrictions on dual practice. As held in Opinion
328, a lawyer who is also an accountant may practice both professions
in accordance with the following rule:
It is not necessarily improper for a lawyer simultaneously to hold
himself out as a lawyer and as a certified public accountant. A
lawyer who practices as a certified public accoutant while engaged
in the practice of law shall not identify himself as a C.P.A. on
his legal profession letterhead, office, sign, or professional card.
A lawyer who is engaged, out of one office, in the practice of law
and in another profession or occupation which is closely related
to law must conform to the Code of Professional Responsibility in
conducting such activities.
The earlier opinions cited and followed in Opinion 328 make it plain
that any lawyer who practices accounting is "acting as a lawyer
and subject to the Canons" as to everything done by him as
an accountant. This places almost insurmountable restrictions and
barriers to the practice of accounting in that everything he does
as an accountant "constitutes the practice of law."
In our opinion the possibility of a lawyer practicing accounting
in his own office does not permit the lawyer to practice law in
an accounting firm as suggested in the question. The admonition
in Opinion 328 is pertinent:
.a lawyer may conduct, in compliance with DR2-102(E), his law practice
and a second occupation, not law-related, from one office; and he
may practice from the same office both as a lawyer and as a member
of a law-related profession or occupation, such as a marriage counsellor,
accountant, labor relations consultant, real estate broker, or mortgage
broker, if he complies not merely with DR2-102(E) but with all provisions
of the Code of Professional Responsibility while conducting his
second, law-related occupation. A lawyer may not, of course, escape
his obligations under DR2-102(E) and under other disciplinary rules
of the Code by the stratagem of ostensibly dividing into two separate
offices his office quarters which are, for practical purposes, unitary
or integral. The following language from Informal Opinion 775 (1965)
is relevant:
While
. . . the Committee does not consider it to be necessarily unethical
to practice law and concurrently, but in different transactions,
engage in the real estate business, the Committee is of the opinion
that to do so in accordance with the Canons is so difficult that
suspicions of unethical conduct are almost inevitable. For that
reason alone, it is our opinion that only a very few lawyers will
expose themselves to such suspicions on the part of their brother
lawyers and the public. The lawyer who does so must be willing to
undertake the tremendous burdens of conducting his real estate business
ethically under our Canons . . . .
75-5, April 8, 1975
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