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Ethically Speaking: How many hats can a lawyer ethically wear?

John E. Bernacki

When providing legal services, lawyers often wear different hats: legal advisor, business and tax authority, social worker and even counselor. And occasionally, in addition to fulfilling a number of different roles while acting as an attorney, some lawyers provide services above and beyond legal services.

For example, as was the case in a recent opinion (Op. 933) handed down by the New York State Bar Association’s Committee on Professional Ethics, an attorney sought to fulfill the dual role of both attorney and real estate agent. Not surprisingly, when attorneys seek to play dual roles, it can often present thorny ethical issues.

Accordingly, at issue in Op. 933 was whether it was ethical for a lawyer to: 1) practice law and conduct a real estate brokerage business from the same premises, and 2) send out advertisements and greeting cards to a joint list of combined law clients, brokerage clients, general business contacts and others without differentiating the source of the mailings.

In the case at issue, the inquiring lawyer was practicing law and providing real estate brokerage services from his home office. The brokerage was a limited liability corporation of which the inquiring attorney was the sole member but was not the sole employee and the brokerage entity did not pay any rent to the inquiring attorney.

The committee considered the issues presented and first concluded that Rule 5.7 of the Rules of Professional Conduct, which governs the provision of non-legal services by a lawyer, applied to the inquiring attorney’s situation. After reviewing its prior opinions, the committee concluded that it was ethical for the inquiring attorney to conduct a law practice and real estate brokerage from the same office.

The committee also gave the green light to sending out “in the same mailing envelope a greeting card, business card,  refrigerator magnet or other token of that sort that indicates that the sender is both a lawyer and a licensed real estate broker, or two of whatever the lawyer may send, one from the lawyer as lawyer and one as proprietor of the brokerage, provided that the information is truthful and is neither deceptive nor misleading.”

However, the committee cautioned that when offering both legal services and real estate brokerage services from the same office, it is not ethical for a lawyer to serve as both legal counsel for a party to a real estate transaction and as a broker in that same transaction.

The committee also explained that it was important to understand that “(i)f the brokerage services provided to a particular brokerage client are not distinct from legal services provided to that same client, albeit in different matters, or could be perceived by that client to be the subject of a client-lawyer relationship,  those brokerage services will be subject to the Rules of Professional Conduct.”

Finally, the committee emphasized the ever-important goal of protecting the client’s interests when serving dual roles, noting that pursuant to Rule 5.7(b), a lawyer should not “allow any non-lawyer with whom the lawyer is associated in a  brokerage business to ‘direct or regulate the lawyer’s professional judgment in rendering legal services’ or to cause the lawyer ‘to compromise [the lawyer’s] duty under Rule 1.6(a) and (c) with respect to the confidential information of a client receiving legal services.’”

So, as is oftentimes the case when it comes to ethical issues, the resolution of the ethical dilemmas presented revolved around avoiding conflicts of interests and protecting the best interests of the client. Because client service is at the heart of what we do as lawyers and ensuring that our clients receive the best representation possible is always the end goal.

The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford. He can be reached at www.johnbernackilaw.com.

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