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PROPOSED RULE 5.5
UNAUTHORIZED PRACTICE OF LAW
lawyer shall not:
profession in that jurisdiction; or
practice of law. A lawyer may, however, be employed, retained or paid by, or
[1] The definition of the practice of law is established by law and varies from one
jurisdiction to another. Whatever the definition, limiting the practice of law to members of the bar
protects the public against rendition of legal services by unqualified persons.
[2]Paragraph (b) does not prohibit a lawyer from employing the services of
paraprofessionals and delegating functions to them, so long as the lawyer supervises the delegated
work and retains responsibility for their work. See Rule 5.3. Likewise, it does not prohibit lawyers
from providing professional advice and instruction to nonlawyers whose employment requires
knowledge of law,
; for example,such asclaims adjusters, employees of financial or commercial
institutions, social workers, accountants, or
andpersons employed in government agencies. In
addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[3] A lawyer does not assist the unauthorized practice of law if he or she advises a client
with respect to whether an activity constitutes the unauthorized practice of law, accepts an
unsolicited referral of a client from a person whose prior involvement in the matter constituted the
unauthorized practice of law, or defends a person against charges that he or she has engaged in the
unauthorized practice of law.
Paragraphs (b)(1) and (2) identify two situations in which a lawyer employed, retained,
an organization controlled bynonlawyers may properly provide legal services to the
Made
Based on its revision of Proposed Rule 7.6 concerning intermediary organizations, the
Committee has deleted Paragraph (b)(1), as such issues would now be treated outside these Rules.
Upon making this revision, the Committee concluded that the retention of Paragraph (b)(2) was not
necessary, particularly as it would be a non-uniform provision. No change in the substance of the
Proposed Rules is intended.
PROPOSED RULE 5.6
RESTRICTIONS ON RIGHT TO PRACTICE
after termination of the relationship, except an agreement concerning benefits upon
retirement; or
settlement of a controversy between private parties.
[1] An agreement restricting the right of a lawyer to practice after leaving a firm not only
limits the lawyer’s professional autonomy, but also limits the freedom of clients to choose a lawyer.
Paragraph (a) prohibits such agreements except for restrictions incident to provisions concerning
retirement benefits for service with the firm.
[2] Paragraph (b) prohibits a lawyer from agreeing not to represent other persons in
connection with settling a claim on behalf of a client.
[3] This Rule does not apply to prohibit restrictions that may be included in the terms of the
sale of a law practice pursuant to Rule 1.17.
The Proposed Rule is identical to the ABA Model Rule 5.6.
Changes Made to 1997 Committee Preliminary Draft In Response to Comments
Made
PROPOSED RULE 5.7
RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
law-related services, as defined in paragraph (b), if the law-related services are provided:
(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal
services to clients; or
fails to take reasonable measures to assure that a person obtaining the law-related services
knows that the services of the separate entity are not legal services and that the protections
of the client-lawyer relationship do not exist.
conjunction with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by anonlawyer.
[1] When a lawyer performs law-related services or controls an organization that does so,
there exists the potential for ethical problems. Principal among these is the possibility that the
person for whom the law-related services are performed fails to understand that the services may
not carry with themthe protections normally afforded as part of the client-lawyer relationship. The
recipient of the law-related services may expect, for example, that the protection of client
confidences, prohibitions against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply to the provision of law-related
services when that may not be the case.
[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the
lawyer does not provide any legal services to the person for whom the law-related services are
performed. The Rule identifies the circumstances in which all of the Rules of Professional Conduct
apply to the provision of law-related services. Even when those circumstances do not exist,
however, the conduct of a lawyer involved in the provision of law-related services is subject to those
Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the
provision of legal services. See, e.g., Rule 8.4.
[3] When law-related services are provided by a lawyer under circumstances that are not
distinct from the lawyer's provision of legal services to clients, the lawyer in providing the
law-related services must adhere to the requirements of the Rules of Professional Conduct as
provided in Rule 5.7(a)(1).
[4] Law-related services also may be provided through an entity that is distinct from that
through which the lawyer provides legal services. If the lawyer individually or with others has
control of such an entity's operations, the Rule requires the lawyer to take reasonable measures to
assure that each person using the services of the entity knows that the services provided by the
entity are not legal services and that the Rules of Professional Conduct that relate to the
client-lawyer relationship do not apply. A lawyer's control of an entity extends to the ability to
direct its operation. Whether a lawyer has such control will depend upon the circumstances of the
particular case.
[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a
separate law-related service entity controlled by the lawyer, individually or with others, the lawyer
must comply with Rule 1.8(a).
[6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person
using law-related services understands the practical effect or significance of the inapplicability of
the Rules of Professional Conduct, the lawyer should communicate to the person receiving the
law-related services, in a manner sufficient to assure that the person understands the significance of
the fact, that the relationship of the person to the business entity will not be a client-lawyer
relationship. The communication should be made before entering into an agreement for provision
of or providing law-related services, and preferably should be in writing.
[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures
under the circumstances to communicate the desired understanding. For instance, a sophisticated
user of law-related services, such as a publicly held corporation, may require a lesser explanation
than someone unaccustomed to making distinctions between legal services and law-related services,
such as an individual seeking tax advice from a lawyer-accountant or investigative services in
connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer
should take special care to keep separate the provision of law-related and legal services in order to
minimize the risk that the recipient will assume that the law-related services are legal services. The
risk of such confusion is especially acute when the lawyer renders both types of services with
respect to the same matter. Under some circumstances the legal and law-related services may be so
closely entwined that they cannot be distinguished from each other, and the requirement of
disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case
a lawyer will be responsible for assuring that both the lawyer's conduct and, to the extent required
by Rule 5.3, that of nonlawyer employees in the distinct entity which the lawyer controls complies
in all respects with the Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be served by lawyers'
engaging in the delivery of law-related services. Examples of law-related services include providing
title insurance, financial planning, accounting, trust services, real estate counseling, legislative
lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent,
medical or environmental consulting.
[10] When a lawyer is obliged to accord the recipients of such services the protections of
those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the
proscriptions of the Rules addressing conflict of interest (Rules 1.7 through 1.11, especially Rules
1.7(b) and 1.8(a), (b), and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating
to disclosure of confidential information. The promotion of the law-related services must also in all
respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation. In that
regard, lawyers should take special care to identify the obligations that may be imposed as a result
of a jurisdiction's decisional law.
[11] When the full protections of all of the Rules of Professional Conduct do not apply to
the provision of law-related services, principles of law external to the Rules, for example, the law of
principal and agent, govern the legal duties owed to those receiving the services. Those other legal
principles may establish a different degree of protection for the recipient with respect to
confidentiality of information, conflicts of interest and permissible business relationships with
clients. See also Rule 8.4 (Misconduct).
See Rule 1.0(f)
“Reasonably” and “Reasonable”See Rule 1.0(i)
There is no counterpart to this Rule in the Disciplinary Rules. Tennessee Formal Ethics
Opinions 82-F-36 and 94-F-135 permit lawyers to engage in law-related businesses but require that
all aspects of the law-related business be conducted in accordance with the Code of Professional
Responsibility. The Proposed Rule carves out some exceptions to this requirement.
In response to considerable comment, the Committee reconsidered its decision to codify the
holdings in Tennessee Formal Ethics Opinions 82-F-36 and 94-F-135 and has now approved
adoption of ABA Model Rule 5.7.
Rule 5.7 read as follows:
provision of law-related services by
a law firm; or
with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by a nonlawyer.
Made