Opinion 90-3

The Committee has been asked for its opinion concerning the handling of immigration matters for clients who are directed to the attorney by a business corporation. Specifically, the Committee has been informed of the following facts:

The inquiring attorney devotes most of his or her practice to immigration and nationality law. A corporation engaged in the business of translations, credentials evaluations, and advising international clients seeks an arrangement by which the inquirer will service the corporation's immigration clients. The inquirer believes the corporation is currently representing clients in immigration matters in the unauthorized practice of law. The Committee understands that the corporation is not a professional law corporation. Further, the inquirer is sure that the corporation will only be interested in an arrangement with the attorney if the corporation receives remuneration as a result. Should such an arrangement be entered into, the inquirer is confident that he or she will retain complete control of the cases and be responsible for the results.

The question is whether, under these circumstances, the attorney may ethically be hired by the corporation or enter into an alternative arrangement to achieve the stated purposes.

It is the Committee's view that, as discussed below, such an arrangement would be contrary to the Rules of Professional Conduct and therefore impermissible.

Rule 5.4(a)
of the Rules of Professional Conduct, entitled "Professional Independence of a Lawyer," provides that "[a] lawyer or law firm shall not share legal fees with a nonlawyer," except in circumstances clearly not applicable here. Further, it has specifically been held that a business may not be paid for supplying a lawyer to a client except only to compensate for actual expenses in providing the lawyer's representation. National Treasury Employees Union v. U.S. Dept. of Treasury, 656 F.2d 848 (D.C.Cir. 1981) (Privacy Act fee award to union limited to actual cost of providing staff attorney to represent union member under prepaid legal services plan).

Rule 5.5(a) of the Rules of Professional Conduct, dealing with the unauthorized practice of law, states that "[a] lawyer shall not ... aid a nonlawyer in the unauthorized practice of law.

Based upon these rules, the contemplated arrangement would constitute unethical fee-splitting and possibly aid a nonlawyer in the unauthorized practice of law. As to the former, if the corporation receives remuneration from either the client or the lawyer for making the lawyer's services available to the client, that would be unethical splitting of a legal fee with the nonlawyer corporation. On the other hand, if the entire legal fee is paid to the attorney, the attorney may retain the corporation to provide legitimate nonlegal services (e.g., translations) so long as the charge for such services is reasonable and no violation of Rule
is involved.

If the inquiring attorney renders an opinion to the corporation concerning an immigration matter involving a client of the corporation, the attorney is in danger of violating Rule 5.5(a).
This could result if the corporation provides that opinion to, or uses it on behalf of, its client. To the extent this would constitute the unauthorized practice of law by the corporation, the lawyer will have aided that violation. See Carter v. Berberian, 434 A.2d 255 (R.I. 1981). While Rule 5.5(a) would appear to require a knowing assistance, in some circumstances reckless or even negligent conduct in failing to make an adequate inquiry has been held to be tantamount to knowledge. Since the inquirer is of the view that the corporation is already engaged in the unauthorized practice of law, care should be taken to avoid a possible infraction of Rule 5.5(a) by providing assistance to such conduct by the corporation.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.