Summary: A lawyer who is engaged in general practice of law may offer a legal research service to other lawyers, and may publicize the availability and advantages of such service by means of letters and advertisements directed to other lawyers, but only upon the following conditions: (1) the research service may be provided only to other lawyers; (2) the publicity for the legal research service may not identify the lawyer by name nor state that the work will be performed or supervised by a lawyer; (3) the lawyer may not accept any general work which comes to him through the legal research service; and (4) in the course of his general practice the lawyer may not indicate on his letterhead, office sign, or professional card that he operates the legal research service.
Facts: A lawyer who is engaged in the general practice of law proposes to offer a legal research service to other lawyers while continuing his general practice. He proposes to send letters to other lawyers in the same geographical area, announcing the availability of the service at specified hourly rates and extolling the economic advantages of utilizing the service, and to advertise the service in local legal periodicals. The research services will be provided only to other lawyers. The lawyer would prefer to operate the legal research service under his own name, but as an alternative would be willing to operate under a trade name, such as "Middlesex Legal Research Company.'' He asks our advice as to whether he may carry out his plans without violation of the Disciplinary Rules.
Discussion: A lawyer may use the services of a non-lawyer to perform legal research or draft legal documents if the lawyer maintains a direct relationship with his client, supervises the delegated work, and has complete professional responsibility for the work product. Ethical Consideration EC 3-6; ABA Formal Opinion No. 316. See also our Opinion No. 73-2. It would seem to follow that a lawyer properly may use the services of another lawyer to perform legal research, and we do not believe that the payment of an hourly rate of compensation for such research work would represent a "division of fees'' in violation of Disciplinary Rule DR 2-107.
Ethical problems are presented in the present situation because the lawyer who proposes to offer the legal research service also proposes to publicize that service by means of letters and advertisements which obviously would not be in the nature of the ''dignified announcements" of availability to act as a consultant to other lawyers which are permitted by Disciplinary Rule DR 2-105(A)(3) as construed in our Opinion No. 74-4.
In recent years a number of legal research service organizations have begun to offer research services to lawyers, and to publicize the availability of such services by extensive advertising.
For example, an organization called "The Research Group Incorporated" regularly publishes full-page advertisements in the American Bar Association Journal. In recent months such advertisements have stated that "Our staff includes 50 full-time law graduates who are seasoned professionals at preparing strategy, comprehensive legal memoranda, trial and appellate briefs and pleadings" (ABA Journal, December, 1974, at page 1485) and that "You get the benefit of lawyers who are making a career out of research." (ABA Journal, January, 1975, at page 27)
Advertisements for the services of other legal research service organizations also have appeared in recent issues of the Massachusetts Lawyers Weekly.
We have been informed that the Committee on Unauthorized Practice of Law of the Massachusetts Bar Association has rendered an informal opinion to the effect that The Research Group Incorporated is not engaged in the unauthorized practice of law in providing research services to lawyers, and we understand that similar committees of other state bar associations have reached the same conclusion. While we recognize that strong arguments may be made to the contrary, we will accept as a basic premise the conclusion of the Committee on Unauthorized Practice of Law that the operation of a legal research service as such is not the practice of law.
It seems to us neither fair nor reasonable that a lawyer who is engaged in the general practice of law should be precluded from offering a similar legal research service, or from publicizing it in the same manner that other such legal research services are publicized, simply because he also is engaged in the general practice of law. It is not uncommon for practicing lawyers to engage in other businesses unrelated to the law or to perform law-related services which also are performed by non-lawyers (for example, the preparation of income tax returns or the searching of titles in registries of deeds). However, in the present situation we believe that certain restrictions must be imposed upon the lawyer who proposes to offer the legal research service, because of the fact that he simultaneously will be engaged in the general practice of law. (Cf., ABA Formal Opinion No. 328, relating to a lawyer who is also a C.P.A.)
Disciplinary Rule DR 2-102(E) provides that:
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.
Having accepted the proposition that operation of a legal research service is not the practice of law, we conclude that it must be "another profession or business." Accordingly, the lawyer who operates the legal research service may not indicate on his letterhead, office sign, or professional card that he operates such legal research service; and he may not identify himself as a lawyer in any publication made in connection with the legal research service. In the latter respect, we believe that he should not state in any publication relating to the legal research service that the work is to be performed or supervised by a lawyer--whether or not identified by name.
Our conclusion on this aspect of the problem is reinforced by examination of Disciplinary Rule DR 2-101(B), which provides that "A lawyer shall not publicize himself ... as a lawyer through newspaper or magazine advertisements ... or other means of commercial publicity ..." (with certain exceptions not deemed relevant to the present situation), and Disciplinary Rule DR 2-105(A), which provides that "A lawyer shall not hold himself out publicly as a specialist ..." (again with certain exceptions not deemed relevant to the present situation).
We are aware that it is difficult to harmonize our conclusions with the ABA's acceptance for publication in its own journal of advertisements in which a legal research service organization represents that it will provide the services of "lawyers who are making a career out of research."
In most communities, operation of the legal research service under the name of the lawyer would be equivalent to a representation that the research services would be performed or supervised by a lawyer. It follows that the legal research service offered by a practicing lawyer may be operated and promoted only under a trade name or corporate name. While Disciplinary Rule DR 2-102(B) provides that "A lawyer in private practice shall not practice under a trade name," we return to the basic assumption that the operation of the legal research service is not the practice of law, and conclude that operation of it under a trade name would not be in violation of DR 2-102(B).
We believe that the lawyer may operate the legal research service out of the same office from which he engages in his general practice of law, so long as the legal research service has a separate telephone and there is no visible indication on the premises that the legal research service is based in the same office. (Cf., ABA Formal Opinion No. 328.) We also believe that he may disclose to potential customers of the legal research service that the work will be done or supervised by him, if no such disclosure is made in publications promoting the service.
The import of DR 2-102(E), as we construe it, is that a lawyer neither may promote his other "business or profession" by advertising that legal expertise is available through it, nor promote his own law practice by using the other "business or profession" as a source or "feeder" of general legal business.
Disciplinary Rule DR 2-101(A) provides that "A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract law clients ... ." Disciplinary Rule DR 2-102 imposes severe restrictions upon "advertising" by lawyers; and Disciplinary Rule DR 2-103 generally prohibits a lawyer from recommending employment of himself to lay clients, requesting others to recommend him, compensating others for recommending him, or accepting employment which is offered to him as a result of such prohibited conduct.
In light of Disciplinary Rules DR 2-101, 2-102, and 2-103, and in order to avoid "even the appearance of impropriety" (Canon 9; Ethical Consideration EC 9-6), we believe that the lawyer who operates a legal research service should be precluded from accepting any general legal work (that is, legal work other than such research work) which is offered to him through, or as a result of his operation of, the legal research service. For example, if his legal research service provides a draft appellate brief to a lawyer "customer," the lawyer who operates the legal research service should not then agree to argue the case in court; and under no circumstances should he accept employment by a nonlawyer who has been attracted by a publication made for the purpose of promoting the legal research service.
Permission to publish granted by the Board of Delegates, 1975. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.