Opinion 438
Question Presented
Under the Texas Code of Professional Responsibility, may a law firm employ a certified public accountant, who is not licensed to practice law, to perform for clients without supervision by a licensed attorney various services relating to federal taxes? Such services would include counseling on tax matters, preparation of tax returns, and appearances on behalf of clients before the Internal Revenue Service and before the United States Tax Court. Related legal services, such as the preparation of wills or contracts, would be supervised by a licensed attorney. The accountant would be identified as a non-lawyer or as performing non-legal services on the firm letterhead and business cards. The accountant would be paid a salary by the law firm and the law firm might in its discretion grant a bonus to the accountant.
It is beyond question that a law firm may employ a certified public accountant or other non-lawyer to perform certain services for the law firm and to assist in the performance of legal services by the law firm under the supervision and the responsibility of a lawyer admitted to practice law in the state. However, the arrangement that is the subject of this opinion involves the critical additional element that the accountant employed by the law firm would perform services in the tax area directly for clients of the law firm without any supervision by a lawyer. Such services would be similar to or the same as services performed by lawyers and would include representation of clients before the Internal Revenue Service and the United States Tax Court. For purposes of this opinion, it is assumed that all of the services that the accountant would perform directly for clients without a lawyer's supervision would be services that either would not constitute the practice of law or could in any event be performed by non-lawyers under applicable federal statute or regulation.
Since the services that would be performed by the accountant are similar to or the same as services that are performed by lawyers, there is a substantial risk that clients or potential clients of the law firm would be misled by the arrangement into believing that the accountant's services were legal services performed by, or at least supervised by, a lawyer responsible for such services. See Ethical Consideration ("EC") 3-6; see also EC 3-3. By holding out to the public and to clients a non-lawyer employee to perform unsupervised services that are frequently performed by licensed lawyers, the law firm would unavoidably be making a false or misleading communication about the services performed by the law firm. Identification, on the law firm's letterhead and business cards, of the accountant as a non-lawyer or as performing non-legal services could not in this situation eliminate the substantial risk inherent in the arrangement for public misunderstanding of the extent of legal services performed by the law firm. Accordingly, such an arrangement would involve with respect to the law firm a false or misleading communication about the law firm's services in violation of Disciplinary Rule 2-101(A): "A lawyer shall not make, on behalf of himself, his partner, associate, or any other lawyer, any false or misleading communication about the lawyer or the lawyer's services."
It is not permissible under the Texas Code of Professional Responsibility for a law firm to employ a non-lawyer accountant who would perform for law firm clients tax services that are not supervised by a licensed attorney.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 438 (1987)