Ind. Prof. Cond. Rule 5.7

Services

Effective January 1, 2005

(a) A lawyer shall be subject to the Rules of Professional Conduct with respect to the provision

of law-related services, as defined in paragraph (b), if the law-related services are provided:

(1) by the lawyer in circumstances that are not distinct from the lawyer's provision of legal

services to clients; or

(2) in other circumstance by an entity controlled by the lawyer individually or with others if

the lawyer fails to take reasonable measures to assure that a person obtaining the law-related services knows that the services are not legal services and that the protections of

the client-lawyer relationship do not exist.

(b) The term “law-related services” denotes services that might reasonably be performed in

conjunction with and in substance are related to the provision of legal services, and that are

not prohibited as unauthorized practice of law when provided by a non-lawyer.

Comment

[1] When a lawyer performs law-related services or controls an organization that does so

or uses a law license to promote an organization or otherwise creates a basis for a belief

that the client may be dealing with an attorney (such as where a person uses “J.D.” on

business cards or stationary or hangs framed law degrees or court admissions on office

walls), there exists the potential for ethical problems. Principal among these is the pos-

sibility that the person for whom the law-related services are performed fails to understand that the services may not carry with them the protections normally afforded as part

of the client-lawyer relationship. The recipient of the law-related services may expect, for

example, that the protection of client confidences, prohibitions against representation of

persons with conflicting interests, and obligations of a lawyer to maintain professional

independence apply to the provision of law-related services when that may not be the

case.

[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the lawyer does not provide any legal services to the person for whom the law-related services

are performed and whether the law-related services are performed through a law firm or a

separate entity. The Rule identifies the circumstances in which all of the Rules of Professional Conduct apply to the provision of law-related services. Even when those circumstances do not exist, however, the conduct of a lawyer involved in the provision of

law-related services is subject to those Rules that apply generally to lawyer conduct,

regardless of whether the conduct involves the provision of legal services. See, e.g., Rule

8.4.

[3] When law-related services are provided by a lawyer under circumstances that are not

distinct from the lawyer's provision of legal services to clients, the lawyer in providing the

law-related services must adhere to the requirements of the Rules of Professional Conduct as provided in paragraph (a)(1). Even when the law-related and legal services are

provided in circumstances that are distinct from each other, for example through separate

entities or different support staff within the law firm, the Rules of Professional Conduct

apply to the lawyer as provided in paragraph (a)(2) unless the lawyer takes reasonable

measures to assure that the recipient of the law-related services knows that the services

are not legal services and that the protections of the client-lawyer relationship do not

apply.

[4] Law-related services also may be provided through an entity that is distinct from that

through which the lawyer provides legal services. If the lawyer individually or with others

has control of such an entity's operations, the Rule requires the lawyer to take reasonable

measures to assure that each person using the services of the entity knows that the services provided by the entity are not legal services and that the Rules of Professional Conduct that relate to the client-lawyer relationship do not apply. A lawyer's control of an

entity extends to the ability to direct its operation. Whether a lawyer has such control will

depend upon the circumstances of the particular case.

[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a

separate law-related service entity controlled by the lawyer, individually or with others, the

lawyer must comply with Rule 1.8(a).

[6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person using law-related services understands the practical effect or significance of the inap-

plicability of the Rules of Professional Conduct, the lawyer should communicate to the

person receiving the law-related services, in a manner sufficient to assure that the person

understands the significance of the fact, that the relationship of the person to the business

entity will not be a client-lawyer relationship. The communication should be made before

entering into an agreement for provision of or providing law-related services, and prefer-

ably should be in writing.

[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures under the circumstances to communicate the desired understanding. For instance, a

sophisticated user of law-related services, such as a publicly held corporation, may

require a lesser explanation than someone unaccustomed to making distinctions between

legal services and law-related services, such as an individual seeking tax advice from a

lawyer-accountant or investigative services in connection with a lawsuit.

[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer should take special care to keep separate the provision of law-related and legal services in order to minimize the risk that the recipient will assume that the law-related

services are legal services. The risk of such confusion is especially acute when the lawyer renders both types of services with respect to the same matter. Under some circumstances the legal and law-related services may be so closely entwined that they

cannot be distinguished from each other, and the requirement of disclosure and con-

sultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case a lawyer

will be responsible for assuring that both the lawyer's conduct and, to the extent required

by Rule 5.3, that of nonlawyer employees in the distinct entity that the lawyer controls

complies in all respects with the Rules of Professional Conduct.

[9] A broad range of economic and other interests of clients may be served by lawyers'

engaging in the delivery of law-related services. Examples of law-related services include

providing title insurance, financial planning, accounting, real estate counseling, legislative

lobbying, economic analysis, social work, psychological counseling, tax preparation, and

medical or environmental consulting.

[10] When a lawyer is obliged to accord the recipients of such services the protections of

those Rules that apply to the client-lawyer relationship, the lawyer must take special care

to heed the proscriptions of the Rules addressing conflict of interest (Rules 1.7 through

1.11, especially Rules 1.7(a)(2) and 1.8(a), (b) and (f)), and to scrupulously adhere to the

requirements of Rule 1.6 relating to disclosure of confidential information. Where the provision of law-related services is subject to these Rules, the promotion of the law-related

services must also in all respects comply with Rules 7.2, through 7.5, dealing with advert-

ising and solicitation. In that regard, lawyers should take special care to identify the obligations that may be imposed as a result of a jurisdiction's decisional law.

[11] When the full protections of all of the Indiana Rules of Professional Conduct do not

apply to the provision of law-related services, principles of law external to the Rules, for

example, the law of principal and agent, govern the legal duties owed to those receiving

the services. Those other legal principles may establish a different degree of protection

for the recipient with respect to confidentiality of information, conflicts of interest and per-

missible business relationships with clients. See also Rule 8.4 (Misconduct).

Public Service