April 8, 1986
A lawyer may function in a nonlawyer capacity as a government benefits consultant in the Social Security Administration claims process without disclosing to clients the fact that he is a lawyer, if he provides only nonlegal services which the law allows lay individuals to perform.
References: MCPR DR 1-102(A), DR 3-103(A); CI-25, CI-654.
A lawyer accepted employment with a Michigan based company to act in the nonlawyer capacity of a government benefits consultant specializing in assisting clients throughout the administrative claim process associated with the Social Security Act. The company which the lawyer has joined is composed of nonlegal professionals who in no way hold themselves out to the public as practicing law, nor do they in any manner mislead the public into believing that they provide legal services. The lawyer will provide only those services which the law allows lay individuals to perform and beyond those services will not practice law or hold himself out to the public as practicing law.
The lawyer asks whether he must disclose to clients the fact that he is a lawyer and have them sign a consent, knowledge and waiver form acknowledging the fact that he is not acting in a legal capacity.
MCPR DR 1-102 states:
"(A) A lawyer shall not:
"(1) Violate a Disciplinary Rule.
"(2) Circumvent a Disciplinary Rule through actions of another
"(3) Engage in illegal conduct involving morale turpitude.
"(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.
"(5) Engage in conduct that is prejudicial to the administration of justice.
"(6) Engage in any other conduct that adversely reflects on his fitness to practice law."
MCPR DR 3-103(A) states:
"A lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law."
Functionally, the "practice of law" relates to a lawyers rendition of services to others which call for educated ability to relate the general body and philosophy of law to a specific legal problem. If by definition a lawyer chooses to not practice law, but to engage in a partnership with a company whose activities are completely non-legal, he is, of course free to do so. However, he must make a clear choice as to whether he will practice law or will pursue a lay occupation for if he tries to do both he will find himself in an improper partnership with a laymen while practicing law. Having opted not to practice law, but rather, to join lay persons in rendering non-legal services, a lawyer must refrain from the practice of law and no other lay members of the new venture may practice law by or through the presence of such a lawyer in that venture.
ABA Op 257 held that a lawyer may enter into a partnership with a patent agent licensed by the United States Patent Office if the partnership activities are limited to such as are permitted laymen under patent office rules. The rationale of that opinion fits equally well to the situation where a lawyer enters into a partnership with a private company, providing government benefits consultation on Social Security claims.
20 CFR 404.1705(b) of the Social Security Act, as amended, provides:
"(b) Persons other than attorney. You may appoint any person who is not an attorney to be your representative in dealings with us if he or she -
"(1) Is generally know to have a good character and reputation;
"(2) Is capable of giving valuable help to you in connection with your claim;
"(3) Is not disqualified or suspended from acting as a representative in dealings with us; and
"(4) Is not prohibited by any law from acting as a representative."
In this instance the focus of attention should be on whether the lawyer will in any manner practice law in a capacity which is not otherwise allowable to a lay person. If the lawyer's functions are limited to those allowable by law to lay individuals and the lawyer in no way holds himself out as practicing law, then no reason should exist which would mandate disclosure of his lawyer status.
As CI-25 points out that "[s]ome services, though a layman can perform them, may constitute the practice of law when performed by a lawyer - for example, the preparation of income tax returns ("Legal Ethics" by Wise, page 64)." When such instances as this occur there exists an overlap where the lay person and the lawyer are both practicing law. However, it does not necessarily follow that when the law allows lay people to perform services which would normally constitute practicing law that lawyers should be disqualified from providing those same services unless they disclose to clients their lawyer status.
CI-654 quite properly points out that "[a]n attorney has a duty to maintain the integrity of the legal profession and not to engage in any conduct involving deceit or misrepresentation." It then draws the conclusion that a lawyer should always identify him/herself as an attorney when appearing in a representative capacity because failure to do so may create the impression that the individual is subject to a lesser degree of ethical responsibility. The flawed logic of this conclusion is that one may misrepresent oneself by making no representation whatsoever. If the client goes to a company of a non-legal professionals who in no way hold themselves out to the public as practicing law, nor do they in any manner mislead the client into believing that they provide legal services, then a lawyer providing those services which the law allows lay persons to perform has not misrepresented himself to the client.
In this situation the real reason for concern should be whether the client was being deceived or misled to believe that he was receiving legal advice from the lawyer when in fact he was not. If the consultant makes it clear that he is not providing legal services or practicing law, then the client will be protected from any possible misunderstanding.
Without a need to know, disclosure of the fact that a consultant who is providing non-legal services, also has a license to practice law, could well create a problem which would not otherwise exist. Some clients may rely upon the fact that the consultant is a licensed lawyer, regardless of any disclaimer, and feel that they have both the benefit of a government benefit consultant and a lawyer.