November 17, 1980
A lawyer may not participate in a trade exchange whose members offer their goods or services in exchange for goods or services to be provided by other participants, notwithstanding the lawyer does not pay any consideration for membership or service charges.
The question you ask is quoted in its entirety as follows:
"May a lawyer offer his or her services as a lawyer by participating as a member of a trade exchange whose members offer their goods and services in exchange for goods and services to be provided by other participants, if the lawyer does not pay an initial entrance fee, annual dues, service charges for each transaction based on the value of the transaction or any other consideration."
It is the opinion of this member of the committee that Formal Opinion C-220 (April, 1980) appearing in the State Bar Michigan Journal Vol. 59, No. 9 (page 615), September, 1980, is dispositive of the question, notwithstanding the lawyer does not pay any consideration for membership or services charges.
The syllabus Formal Opinion C-220 reads as follows:
"A lawyer may not participate in a trade exchange whose members offer their goods or services in exchange for goods or services to be provided by other participants. (Code of Professional Responsibility, DR 2-103(B), DR 2-103(C), DR 3-102(A)"
It is stated in the cited opinion that the "practice of swapping services for goods or other services in place of buying or selling for cash" is "time-honored." The opinion holds the trading of services per se by a lawyer is not improper, but that the specific characteristics of each such arrangement should be examined to determine its propriety.
The "time-honored" practice of exchanging services for goods or other services ordinarily involves a one-to-one relationship. In this instance, however, the trade exchange described by your letter operates within the framework of an organized environment consisting of several members.
To quote a portion of the text of Formal Opinion C-220,
"A lawyer's membership in a trade exchange would be more commercial than is permitted by the Code of Professional Responsibility and would violate the disciplinary rules discussed above."
The factual assumptions one would have to make in order to arrive at a different conclusion would be endless. Even if all of the essential assumptions could be made, the appearance of a lawyer's membership in such a trade exchange would suggest several questions of professional impropriety. For example, would membership in a trade exchange consisting of several members involve client solicitation, would it involve fee splitting, would it involve improper income reporting for tax purposes?
Canon 9 of the Code of Professional Responsibility provides:
A "No" answer to each of the suggested questions would not, in my view, alter the "appearance" of impropriety of a lawyer's membership in such a trade exchange.