717 N.E.2d 151 (Ind. 1999)
This case deals with the increasingly common practice of defense of claims litigation by insurance company house counsel. We hold that an insurance company does not necessarily engage in the unauthorized practice of law when it employs house counsel to represent its insureds and that attorneys who are employees of an insurance company do not assist the insurer in the unauthorized practice of law when they represent the insureds. We also find no inherent conflict in such an arrangement but agree that conflicts may arise. For that reason, among others, accurate disclosure of the arrangement is required. Finally, we hold that the use of a law-firm-like name, specifically "Berlon & Timmel," to describe employee-attorneys is prohibited by Professional Conduct Rule 7.2 because it misleadingly suggests that they are outside counsel.
David and Marcia Wills (the "Wills") asserted personal injury claims against Elaine Mellinger and Betty Suter. Suter was insured by Celina Insurance Group, who selected its house counsel, Keith Faber, to defend Suter. Suter was advised that although Faber was employed and paid by Celina, his ethical obligations were owed to Suter alone. After consultation with another attorney, Suter agreed to the representation.
The Wills moved to disqualify Faber as Suter's counsel on the ground that his representation of Suter resulted in Celina's unauthorized practice of law. Cincinnati Insurance Company then moved to intervene, claiming an interest in the Wills' motion to disqualify Faber based on Cincinnati's practice of providing Indiana counsel for its insureds through Berlon & Timmel, which it described as a "captive law firm." The trial court granted Cincinnati's motion to intervene, and the subsequent record established that Berlon & Timmel is staffed exclusively by employees of Cincinnati who represent only Cincinnati's insureds and Cincinnati itself.
The trial court concluded that Celina engaged in the unauthorized practice of law by providing representation of its insureds through house counsel, and that Faber violated Professional Conduct Rule 5.5(b) by assisting Celina in the unauthorized practice of law. Accordingly, the trial court issued an order on June 11, 1998, granting the Wills' motion to disqualify Faber "so long as he continues to be an employee or agent of Celina Insurance Group such that his participation aids and abets the unauthorized practice of law by Celina." The trial court also addressed the "captive law firm" issue raised by Cincinnati's intervention and concluded that Cincinnati, in addition to the unauthorized practice of law, also engaged in deceptive practices by using the name "Berlon & Timmel." Finally, the trial court found that the attorneys employed by Cincinnati were participating in deceptive practices and aiding the unauthorized practice of law. The trial court ordered both Celina and Cincinnati to stop "any and all practices and activities that could, under the findings of this order, be considered to constitute the unauthorized practice of law...," and found that Cincinnati "should close" its Indianapolis office operated as Berlon & Timmel.
After the Court of Appeals stayed the trial court's orders, but before any decision on the appeal, Celina and Faber petitioned for immediate transfer to this Court under Appellate Rule 4(A)(9), and transfer was granted.
A trial court may disqualify an attorney for a violation of the Rules of Professional Conduct that arises from the attorney's representation before the court. State v. Romero, 578 N.E.2d 673, 676-77 (Ind.1991) (disqualifying former prosecutor who attempted to represent a defendant in a matter substantially related to a prior prosecution without the State's consent in violation of Professional Conduct Rule 1.11's duty to maintain confidences of the State, his former client). The trial court's authority has been described as necessary to prevent "insult and gross violations of decorum," and that authority is limited to attorneys appearing before the court. McQueen v. State, 272 Ind. 229, 231, 396 N.E.2d 903, 904 (1979). More precisely, the authority of the trial court is limited to disqualification in the case before the court. Disqualification of Faber in the suit by the Wills against Suter was within the trial court's jurisdiction in this case.
The trial court's order was not limited to Faber's representation of Suter, however. The order also directed Celina and Cincinnati to cease their representation of all other Indiana insureds by employee-attorneys based on perceived violations of the Rules of Professional Conduct. This sweeping remedy is available only through exercise of this Court's original jurisdiction over all matters with reference to the unauthorized practice of law. IND CONST. Art. VII, § 4; Ind. Admission and Discipline Rule 24; Ind. Appellate Rule 4(A)(3). Available procedural routes to raise this general issue include reference to the Disciplinary Commission and an original action in this Court pursuant to Admission and Discipline Rule 24, but not a proceeding in a trial court. Moreover, the trial court's order as to Faber's disqualification is moot because Suter's interest in this case has been resolved through settlement. Despite these jurisdictional defects, the issue is within the original jurisdiction of this Court, and is fully developed by the parties and amici curiae. Because the issue is of importance to many members of the Bar and their clients and affects a number of pending cases, we granted transfer under Appellate Rule 4(A)(9) to resolve the issue on its merits.
Three distinct issues are presented by the use of house counsel to defend liability claims against policyholders. First, some courts have seen the issue, as the trial court did here, as whether use of house counsel constitutes the unauthorized practice of law by the employer-insurer. See, e.g., Gardner v. North Carolina State Bar, 316 N.C. 285, 341 S.E.2d 517 (1986). Second, other courts have viewed this problem as turning on whether there is an inherent conflict in the representation such that it is a violation of the Rules of Professional Conduct for the house lawyer to proceed. See, e.g., In re Rules Governing the Conduct of Attorneys, 220 So.2d 6 (Fla.1969). Finally, even if such an arrangement may be consistent with the Admission and Discipline Rules, the Rules of Professional Conduct and any applicable statutes, there remains the question whether the representation was properly entered into in the specific case.
Whether an insurance company may properly employ salaried attorneys to represent insureds in claims litigation has been addressed by ten states through court decisions and by the American Bar Association and ten other jurisdictions in ethics opinions. Eight of the ten state courts and one federal circuit have concluded that it is permissible for an attorney employed by an insurance company to represent the company's insureds, but have reached that result through a variety of paths. Two states have disapproved of the arrangement, one focusing on the potential conflict in interest between the insurer and the insured and the second on a statutory bar against the practice of law by a corporation. American Ins. Ass'n v. Kentucky Bar Ass'n, 917 S.W.2d 568 (Ky. 1996); Gardner, 341 S.E.2d at 517.
For the reasons stated below, we now hold, consistent with the majority of state courts that have addressed the issue, that (1) insurance companies do not necessarily engage in the unauthorized practice of law when house counsel represent their insureds in claims litigation and (2) attorneys who are employees of insurance companies do not necessarily trigger an impermissible conflict in violation of the Rules of Professional Conduct when they appear as counsel to defend claims against the companies' policyholders.
As a preliminary matter we address the Wills' contention that Faber's representation of Suter was improper because Suter was not given notice that Celina could appoint house counsel to represent her rather than an outside attorney. Suter's policy provided: "If a claim is made or suit is brought against `insured' ... we [Celina] will: ... [p]rovide a defense at our expense by counsel of our choice ...," clearly disclosing the insurance company's prerogative to choose an attorney for the insured. Only by failing to comment on the issue at all does this language deal with the point raised by the Wills that the "counsel of our choice" may be an employee of the insurer. As a general proposition, adequate disclosure is a matter in the first instance properly addressed through administrative regulation. The insurance commissioner may choose to require more explicit notice to the insured at the time the policy is taken out that "counsel of our choice" could or will include house counsel. And a policyholder aggrieved by nondisclosure of this arrangement at the time of issuance is free to assert whatever claim is thought to arise from that circumstance. But this issue provides no basis for disqualification in this case. Suter did not complain of Celina's assignment of Faber to her case and stated that she was satisfied with Faber's representation. Accordingly, the quality of Suter's notice presents no issue here.
The trial court reasoned that: (1) the attorney-agents of Celina are engaged in the practice of law; (2) Celina, a corporation, can act only through agents; (3) the acts of the attorneys are those of Celina; therefore (4) Celina is engaged in the practice of law. The trial court went on to conclude that Celina's practice of law was unauthorized because Indiana's professional corporation statute implicitly prohibits general business corporations and insurance companies from practicing law. A variant on this theme was adopted by the Kentucky Supreme Court in American Insurance Association v. Kentucky Bar Association, where it reasoned that "a corporation cannot lawfully engage in the practice of law.... Moreover, a corporation[] cannot obtain license to practice law, since it is wholly incapable of acquiring the educational qualifications necessary to obtain such license, nor can it possess in its corporate name the necessary moral character required therefore." 917 S.W.2d 568, 571 (Ky.1996) (citations omitted).
Unlike some other states, Indiana has no express statutory prohibition against a corporation's practicing law. There are, however, many restrictions either explicitly or implicitly imposed by the Rules of Professional Conduct on the forms of business entities available to an attorney for the practice of law. Thus, neither an insurance company nor a general business corporation can simply employ lawyers and hold them out to the public as offering legal services. Whether or not such an activity would involve the entity in the unauthorized practice of law, the Rules of Professional Conduct provide explicit limitations on the persons with whom a lawyer may share fees and form partnerships. Ind. Prof. Cond. R. 5.4(a) & (b). Additionally, the Rules prohibit a lawyer from practicing law in a professional corporation or other association if a nonlawyer owns any interest, is a director or officer or otherwise has the right to direct or control the lawyer's professional judgment. Prof. Cond. R. 5.4(d). Justice Dickson suggests that there would be no recourse against a corporation that simply employed licensed attorneys and sold their services to the general public. If this form of business organization violated, for example, the prohibition against sharing the profits of the practice, the attorneys would be subject to discipline up to and including having their licenses suspended or revoked. And if unlicensed persons did the same thing, those people, and presumably their accomplices and the organization employing them, would be subject to the same sanctions as any other person practicing without a license, including criminal prosecution. Indiana Code § 33-1-5-1 criminalizes the practice of law by a "person" who is not an attorney. "Person" includes corporations, partnerships and other legal entities. See id. §§ 35-41-1-22 (defining "person") & 35-41-1-3 (applying definition to all statutes relating to penal offenses). See also id. § 33-21-2-1 (the practice of law by a person who is not an attorney is prohibited).
Despite the absence of a statute addressing a corporation's practicing law, for decades courts and commentators alike have agreed that it is unlawful for a corporation to practice law in Indiana. Over sixty years ago we were told that "[t]he general rule that a corporation cannot practice law seems to be well settled in the United States today." David Gleber, Attorney and Client—Unauthorized Practice of Law, 13 NOTRE DAME LAWYER 289 (1938). Addressing the State Bar Association, one Indiana commentator stated:
Of course, it is unlawful for a corporation to practice law. It is now unlawful, and it has always been unlawful for a corporation to practice law. The very statement of the proposition is its answer. It is just as sensible, it seems to me, to repeal the law of gravitation or to pass a law making it unlawful for objects to fall to the ground.
Glen D. Peters, Bootleggers in Law, 7 IND. L.J. 46, 53 (1931). This rule was apparently so well settled that those asserting it felt no need to provide any basis for it other than the "common law prohibition of the practice of law by a corporation." Gleber, supra at 290. And in more recent times this Court has stated, although in a quite different context, that "[a] corporation is a creature of statute and can neither practice law nor act in person." Department of Pub. Welfare v. Chair Lance Serv., Inc., 523 N.E.2d 1373, 1377 (Ind. 1988).
It is not obvious, however, precisely what it means to say a "corporation may not practice law," or why that is true in every potential sense of that phrase. The modern statements of the "rule" that a corporation may not practice law typically reflect no more than the point that only a natural person can be admitted to the bar. This is of course correct. The admission provisions requiring a lawyer to graduate from law school and to sit for the bar exam do not contemplate a legal entity as a bar candidate. As the Supreme Court of Georgia put it, "[i]t is manifest from these [admission] provisions of the law that no corporation can be licensed to practice law in this state. No corporation can comply with the requirements which are imposed upon applicants as prerequisites to enable them to obtain license to practice law." Boykin v. Hopkins, 174 Ga. 511, 162 S.E. 796, 800 (1932). Similarly, it is clear that only licensed attorneys may lawfully "practice law." Indeed, as already noted, the unlicensed practice of law by any person is criminal.
From these general propositions in concert with conventional agency principles the Wills and the trial court concluded that the insurer-employer of a licensed attorney is unlawfully practicing law. However, it is clear that some provisions of our Rules and statutes assume or contemplate that entities that cannot sit for the bar may nonetheless employ lawyers who practice law and in that sense "practice law" themselves. All agree that a group of attorneys may lawfully organize as a partnership, limited liability partnership or professional corporation. Each of these legal entities has individuals who are shareholders, partners or employees of the organization and who, as licensed lawyers, also practice law. Despite the obvious fact that neither the partnership nor the professional corporation graduated from law school, etc., there is no claim raised that any of these entities is engaged in the unauthorized practice of law. Moreover, our Rules of Professional Conduct at least implicitly confirm that a partnership's "activities" may consist of the practice of law by, for example, Rule 5.4(b)'s prohibition against formation of such a partnership with a non-lawyer partner.
The statutory provisions for professional corporations are also relevant. The trial court pointed to Indiana Code § 23-1.5-2-3 in support of its conclusion that Celina, an insurance company, engaged in the unauthorized practice of law. This section authorizes professional corporations to be formed to render professional services. Specifically, it provides for a legal entity that is authorized "to render services that may legally be performed only by an attorney." IND.CODE § 23-1.5-2-3(3) (1998). This provision seems to assume that the professional corporation, by "rendering services" will itself be practicing law, just as Rule 5.4(b) describes a partnership as practicing law. The practice is not unauthorized, however. The professional corporation statute goes on to provide that "[a] professional corporation may render professional services only through individuals permitted to render such services in Indiana." Id. § 23-1.5-2-5. This statute reinforces the conclusion that entities may lawfully "render" legal services if the activities are conducted by a licensed attorney. It also authorizes professional corporations to conduct a general practice of law. We do not agree, however, that it impliedly prohibits employees of a general business corporation or an insurance company from practicing law. Rather, it simply leaves them where it found them, subject to the confinements of other rules but not inherently incapable of practicing law.
Finally, the Rules also explicitly recognize that corporations may have house counsel. The definition of a "law firm" includes "lawyers employed in the legal department of a corporation or other organization." Prof. Cond. R. preamble. Rule 1.13 by its terms applies to attorneys "employed or retained" by a corporation or other organization. As a result, employee-attorneys are subject to the same obligations, including supervision, etc., that apply to attorneys in other forms of practice. There is no dispute that properly admitted employee-attorneys practice law in representing their employer and as such are subject to the Rules of Professional Conduct. Moreover, as elaborated in Part II.C., it is not uncommon for house counsel to represent both the corporation and its officers, directors or other employees in matters where the potential for conflict does not preclude common representation. There, as in the insurer situation found in this case, the attorney's obligations run to both clients. Both situations present the possibility of a conflict between the interests of the two clients. Despite that possibility, in many cases the matter is resolved without any significant divergence of those interests, and the interests of economy and simplicity clearly justify the practice.
Notwithstanding the continuing ban, indeed criminalization of "practicing law" by any "person" not an attorney, the Rules of Professional Conduct, statutes and well accepted forms of practice clearly imply that the entity itself is not unlawfully practicing law as long as the activity is conducted through licensed attorneys. It is of course true that a legal entity can be responsible for the professional actions of its partners, employees and agents under standard doctrines of respondeat superior, and in that sense is viewed as engaged in the activity. But that does not mean the entity unlawfully practices law any more than Federal Express unlawfully pilots airplanes. Rather the practice of law, the piloting of airplanes and many other activities are required to be performed by licensed professionals. And, as a general proposition, where the law requires a license, agency doctrine permits an unlicensed legal entity to employ licensed agents to perform those acts requiring a license. RESTATEMENT (SECOND) OF AGENCY § 19 cmt. d (1958). In each case the lawfulness of the entity's activities turns on whether the individual is properly licensed.
Regardless of whether a partnership, a professional corporation, an insurance company, or any other legal entity may be said to be practicing law in some sense, we believe the proper focus of the unauthorized practice inquiry is whether the challenged activity results in the "unauthorized" practice by the individuals involved. Rather than turning on a syllogism based on a series of propositions of dubious general validity, the unauthorized practice issue boils down to whether a non-lawyer is performing tasks requiring a lawyer, or a lawyer not admitted in this State is practicing in Indiana. See 2 GEOFFREY C. HAZARD, JR. & W. WILLIAM HODES, THE LAW OF LAWYERING: A HANDBOOK ON THE MODEL RULES OF PROFESSIONAL CONDUCT § 5.5:102 (1985 & Supp.1998) ("Most of the law on unauthorized practice has been developed by the courts in criminal prosecutions and injunction proceedings against [nonlawyers] for practicing without a license and in civil cases attempting to hold such persons liable for malpractice where they held themselves out as lawyers.").
There is no dispute that the attorney-employee who represents the organization that employs the attorney is practicing law. There is also no dispute that the attorney in this case can properly represent his employer in connection with the Wills' claim. The only issue is whether the concurrent representation of the insured renders the representation unauthorized or makes it somehow the practice of law by someone other than the attorney. Given that the attorney's representation of the insurer-employer is lawful, the representation of a policyholder whose interests are essentially aligned with the insurer's does not inherently result in unauthorized practice by either the insurer or the attorney. Nor, in our view, is this tantamount to offering legal services to the general public. Suter undoubtedly perceived herself as buying insurance coverage and only incidentally acquiring the prospect of legal services. Indeed, if outside counsel were employed to defend her claim, Celina would have been offering her the same package of services from her point of view.
In sum, as explained in Part II.C., there may be many other reasons why an employee-attorney may not concurrently represent both the employer and someone else, but the attorney's status as an employee of an insurance company or any other legal entity is in and of itself no bar. We conclude that Celina does not necessarily engage in the unauthorized practice of law when its employed attorney represents its insureds. Accordingly, Faber does not assist Celina in the unauthorized practice of law when he represents insureds. Our conclusion is the same with respect to Cincinnati and its employed attorneys on the issue of the unauthorized practice of law.
There are plainly many situations where representation of both an insured and the insurer is inconsistent with the Rules of Professional Conduct. However, the issue in this case is whether these potential conflicts are so inherent in the representation that it is a violation of the Rules of Professional Conduct to enter into the arrangement in the first place. We think not.
As a related matter, there is extensive debate in the literature as to whom the attorney represents in this situation. Specifically, whether the attorney is an employee or an outside lawyer, the debate focuses on whether only the insured or both the insured and the insurer should be viewed as the client. We think it unrealistic to ignore the client relationship with both. Joint representation may become problematic, particularly if issues of disclosure of confidences arise. For example the attorney may gain information from the policyholder-client that may affect the insurer-client's coverage obligation. But that is no basis for prohibiting the arrangement in all cases. Whatever issues joint representation raises appear to be wholly independent of the attorney's status as an employee of the insurer or a member of a law firm. Second, there is nothing inherently wrong in common representation of two parties where their interests are aligned. Professional Conduct Rule 1.7 provides direction "[w]hen representation of multiple clients in a single matter is undertaken...." In this respect, the insured and insurer present no qualitatively different situation from any other pair of commonly represented clients.
If a conflict arises, it will have to be handled, and there are a variety of means to do that. But a vast number of claims have been and presumably will be handled with no significant issue between the insurer and the policyholder. Interests of economy and simplicity dictate that this be permitted to continue. Any abuses can be handled on a case-by-case basis rather than by adoption of the broad prohibition the Wills seek. Although issues may arise in dual representation, none are apparent in this case. In any event, Celina has by contract subordinated its interests as a client to those of Suter. Presumably, this resolves by agreement the priority of counsel's obligations if, for example, counsel learns of information that affects the insurer's and the policyholder's interests differently.
The Rules of Professional Conduct prohibit an attorney from representing a client if the representation of that client may be materially limited by the lawyer's responsibilities to another client or to a third person. Prof. Cond. R. 1.7(b). In addition, the professional independence of a lawyer is not impaired so long as the lawyer does not "permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer's professional judgment." Prof. Cond. R. 5.4(c). "Where someone other than the client pays the lawyer's fee or salary, or recommends employment of the lawyer, that arrangement does not modify the lawyer's obligation to the client." Prof. Cond. R. 5.4 cmt.
The Wills contend that Faber violated each of these as well as Rules 1.8(f) (no compensation from those who interfere with the lawyer's independence); 7.3(f) (lawyer shall not compensate those who recommend employment); 5.4(a) (no sharing of legal fees with nonlawyer); and 5.4(d)(2) and (d)(3) (no practice in an association or a professional corporation if nonlawyer holds interest). All of these contentions relate to the inherent inappropriateness of the arrangement. The trial court's order includes detailed discussions of the Wills' claims and the evidence they offered to support those claims. None of the evidence was specific to Faber's relationship to Celina. Rather it focused on the general issue of house counsel as counsel for policyholders. Specifically, as the trial court noted, the Wills "presented nothing beyond mere allegation that Celina directs or regulates Mr. Faber's professional judgment based upon the employment relationship." The trial court found that Faber's employment by Celina did not inherently result in any unethical practice or conflict of interest.
Amicus Curiae, the Defense Trial Counsel of Indiana, argued before this Court that house counsel are less aware of the Rules of Professional Conduct and the discipline matters decided by this Court than attorneys who practice in traditional firms. They point to no evidence in support of this assumption and we decline to adopt it. All members of the Bar accept their obligations to their clients and the Court under the Admission and Discipline Rules and the Rules of Professional Conduct. The vast majority of practicing attorneys discharge their obligations without complaint over an entire career. As to the remainder, this state, like all others, has in place disciplinary procedures to protect the public. In Groninger v. Fletcher Trust, we rejected the plaintiff's claims that "one who is the regular attorney for a trust company will be more loyal to his employer than to the trust for which he is rendering legal services...." 220 Ind. 202, 208, 41 N.E.2d 140, 142 (1942). Over half a century later we still agree with the trial court's conclusion that "[t]here is nothing to suggest that attorneys who are house counsel for insurance corporations are ignorant or numb to the expectations of the Rules of Professional Conduct."
In this respect we join the several states that reject the contention that house counsel representation of insureds presents an inherent conflict in violation of the Rules of Professional Conduct. "Compliance with the Code in all cases will be measured against the Code itself, rather than some variation of the `outside counsel' practice, which, depending upon the circumstances of the particular situation, may not conform to the requirements of the Code." Petition of Youngblood, 895 S.W.2d 322, 328 (Tenn.1995); see also In Re Allstate Ins. Co., 722 S.W.2d 947, 953 (Mo.1987) (en banc) ("There is no basis for a conclusion that employed lawyers have less regard for the Rules of Professional Conduct than private practitioners do.") In rejecting a proposed conduct rule prohibiting house counsel from representing insured, the Supreme Court of Florida found no basis for distinguishing between house counsel and outside counsel. It observed that all attorneys engaged to represent insureds pursuant to an insurance contract face the same ethical decision: an attorney, whether house counsel or outside counsel, "is employed to represent two clients." In Re Rules Governing Conduct of Attorneys, 220 So.2d at 7. The court concluded that the lawyer owes "undivided loyalty to the client whom he purports to serve, not to the third party source of his compensation." Id. at 8. The Supreme Court of Georgia observed that "both [attorneys employed and compensated on a case by case basis] and staff counsel owe duties to and therefore represent both the insurer and the insured." Coscia v. Cunningham, 250 Ga. 521, 299 S.E.2d 880, 881 (1983).
It is of course true that conflicts may arise in the course of representation of an insured by house counsel. The same is true if the insurer pays for a law firm to represent its insured. In either case there may be a conflict based on coverage disputes, the risk of a claim in excess of policy limits, the acquisition of information from the insured that bears on coverage, or a variety of other items. If such a situation arises retention of new counsel to represent the policyholder may be either preferred or necessary. But this potential does not require the abandonment of a mode of doing business that the insurer finds efficient and cost effective, and the insured knowingly accepts. Presumably ultimately the marketplaces of ideas and premium charges will sort this out and strike a balance between claimed cost advantages and perceived desirability of wholly independent counsel. We find nothing in our Rules of Professional Conduct to prevent the parties from continuing to duke this issue out in those marketplaces without interference from the judiciary. If and when abuses are perceived by policyholders they may seek the aid of the courts or the insurance commissioner. Our point is not, as Justice Dickson concludes, that two wrongs make a right. Rather it is that the potential for conflict is inherent in the insurer-insured relationship regardless of whether the attorney is house counsel or outside counsel, and the employment relationship is not qualitatively different in this respect.
Finally, as already noted, apart from the unauthorized practice issue, most of the problems identified by the Wills exist whether house counsel or outside counsel are used. If there is any difference between house and outside lawyers in this respect it is quantitative and not qualitative and varies from situation to situation. Employee-attorneys may be subject to pressures from their employer. But it is also unrealistic to suggest that an outside lawyer is immune from the blandishments of a client, particularly a high volume client that may be the source of a significant portion of the firm's revenues. For a decade the legal press has been full of stories of various cost containment programs implemented by insurers and others to reduce their outside legal expenses. Ultimately all attorneys are bound by their professional obligations to place the interests of their policyholder-client ahead of their own if pressure from an employer or a co-client insurer conflicts with those of the policyholder. We will not assume that an attorney employed by an insurance corporation is in violation of any of the Rules based solely on that employment relationship. The full range of disciplinary sanctions and civil remedies are available to deal with hopefully isolated instances of trouble. This is true whether the attorney is an employee of an insurance company, a partner in a firm significantly dependent on the insurer's business or a lawyer relatively free of direct economic pressure.
In sum, we hold that an insurance company does not engage in the unauthorized practice of law when it employs attorneys to represent insureds and that attorneys employed by insurance companies may represent insureds under circumstances and to the extent permitted by their ethical obligations defined in the Admission and Discipline Rules and the Rules of Professional Conduct. This holding does not, as Justice Dickson suggests, turn on the fact that the employer is an insurance company; it depends on the commonality of interests of the jointly represented clients.
The Court's ability to prohibit the unauthorized practice of law and regulate the conduct of licensed attorneys "emanates from the need to protect the public from those not properly licensed or otherwise qualified to act as attorneys." State ex rel. Disciplinary Commission of the Supreme Court of Indiana v. Owen, 486 N.E.2d 1012, 1014 (Ind.1986); see also Hulbert v. Mybeck, 220 Ind. 530, 532, 44 N.E.2d 830, 831 (1942). In addition, the preamble to the Rules of Professional Conduct cautions that "[t]he profession has a responsibility to assure that its regulations are conceived in the public interest and not in furtherance of parochial or self-interested concerns of the bar."
As demonstrated by this case, free access to the market of legal services and the protection of the public is a delicate balance with results that are not always predictable. As noted in Part II.C.2., in the realm of insurance defense, the public may ultimately reap the benefits of better service at lower cost through the use of house counsel. Although we find no inherent detriment to the general public in the defense of insurance claims by house counsel, we reiterate the fact that the Rules of Professional Conduct, the disciplinary procedures, and other civil remedies exist for the protection of all clients, whether the attorney is house counsel, a sole practitioner, affiliated with a traditional law partnership, or anything else.
The trial court found that the use of the name Berlon & Timmel by Cincinnati's attorneys was deceptive in violation of Professional Conduct Rule 7.2 because "that name implied independence." That Rule provides: "[a] lawyer shall not practice under a name that is misleading as to the identity, responsibility, or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, deceptive...."
The attorneys who work at Berlon & Timmel are employed by Cincinnati and handle only matters for Cincinnati or its policyholders. No one contends that the attorneys perform legal services for the general public. All Berlon & Timmel clients are informed that the attorneys are employed by Cincinnati at the beginning of the representation. Berlon & Timmel's letterhead includes the following language printed along the bottom of the page: "Berlon & Timmel is an unincorporated association, not a partnership, of individual licensed attorneys employed by The Cincinnati Insurance Company for the exclusive purpose of representing the Cincinnati Insurance Companies and their policyholders."
We agree with the trial court that the use of the name Berlon & Timmel implies independence and that the ordinary person would assume "Berlon & Timmel" to be some form of outside counsel. As a result it is "misleading as to the identity, responsibility, or status" of the attorneys practicing under the name.
Cincinnati contends that the disclosure language at the bottom of the letterhead is sufficient to dispel any misperception. The trial court noted that not all forms of communication include this disclosure. For example, Berlon & Timmel's phone book listing and door sign use only "Berlon & Timmel." The trial court concluded that the size and location of the disclosure was "not adequate to negate the deceptiveness resulting from the independence indicated by the firm name, the description on the office door, and the phone book listing." The court also found that the disclaimer was "susceptible to the interpretation that [Cincinnati] was not Berlon & Timmel's only employer" because it stated that "Berlon & Timmel is ... employed by The Cincinnati Insurance Company for the exclusive purpose ...." not that "Berlon & Timmel is ... exclusively employed by The Cincinnati Insurance Company...."
Although similar disclosure language may be sufficient to permit sole practitioners who share office space to adopt a name that may appear as a law firm, it is not sufficient in this case. The use of a firm-like name by a "captive firm" differs from sole practitioners sharing expenses in two respects. First, it may be read to imply not only a separate legal entity but also an independent status that is not enjoyed by the insurer's employees. There is greater danger for the public to be misled in permitting an insurance company to pass off its legal department as an independent entity. Second, there is at least some practical sense in permitting groups of financially independent lawyers to benefit from the economies of a shared name such as the convenience of one sign on shared offices or the cost savings of one advertisement. Cincinnati provides no rationale for using "Berlon & Timmel" as a designation for its house counsel. Perhaps the name was adopted without much reflection. In any event, it is difficult to come up with a proper reason for this designation and we conclude that it is improper to create the perception of a law firm at least partially independent of Cincinnati.
For these reasons we agree with the Supreme Court of Tennessee that the use of captive law firm names is not permissible under the Rules of Professional Conduct. That court reasoned that "[t]he representation that the attorney-employee is separate and independent from the employer is, at least, false, misleading and deceptive. It may be fraudulent, depending on the circumstances under which the representation is made." Petition of Youngblood, 895 S.W.2d 322, 331 (Tenn. 1995); see also Supreme Court of Ohio, Board of Comm'rs on Grievances and Discipline, Op. 95-14 (1995) (attorneys employed by an insurance company may not represent themselves to be outside counsel when they are house counsel). From the record before us, it appears that Berlon & Timmel identifies itself as an aggregate of employee-attorneys at the first contact with the policyholder. If so, the fraud conclusion may well be inappropriate here.
Although we agree that the use of a law-firm-like name is improper, the trial court's finding that Cincinnati should close its Indianapolis office was too broad. It is sufficient that the Indiana attorneys practicing under the name Berlon & Timmel take immediate action to discontinue use of Berlon & Timmel or any other name suggesting a legal entity other than Cincinnati to describe their practice as employees of Cincinnati.
We hold that attorneys employed by insurance companies may represent insureds under circumstances and to the extent permitted by their ethical obligations and that their employment does not necessarily constitute the unauthorized practice of law by the insurance company. We also hold that the use of a name such as "Berlon & Timmel" by attorneys employed by an insurance company violates Professional Conduct Rule 7.2. The order of the trial court is vacated.
SHEPARD, C.J., and SULLIVAN and SELBY, JJ., concur.
The privilege to practice law in Indiana extends only to natural persons who satisfy certain qualifications. Corporations and other organizational entities are thus prohibited from practicing law. The majority today redefines this prohibition, specifically exempting insurance companies from its application and holding that insurance companies do not necessarily engage in the unauthorized practice of law when house counsel represent insureds in liability claims litigation. The majority further holds that the representation provided by house counsel to both insurance companies and their insureds is not so inherently problematic and the interests not so inherently conflict-laden as to violate the Rules of Professional Conduct. I strongly disagree with both of these holdings.
The Indiana Supreme Court has exclusive jurisdiction in matters involving the admission and discipline of attorneys. IND. CONST. art. VII, § 4; Matter of Fletcher, 655 N.E.2d 58, 59 (Ind.1995); In re Kesler, 272 Ind. 161, 163, 397 N.E.2d 574, 575 (1979). This Court has original jurisdiction in matters relating to the unauthorized practice of law. IND. CONST. art. VII, § 4; Matter of Contempt of Mittower, 693 N.E.2d 555, 558 (Ind.1998); Fletcher, 655 N.E.2d at 59. We hold these responsibilities not for the sake of the bar, but for the sake of the public. Id. at 60.
This Court has explained that "[t]he practice of law is restricted to natural persons who have been licensed upon the basis of established character and competence as a protection to the public against lack of knowledge, skill, integrity, and fidelity." Groninger v. Fletcher Trust Co., 220 Ind. 202, 207, 41 N.E.2d 140, 141 (1942). See also Professional Adjusters, Inc. v. Tandon, 433 N.E.2d 779, 783 (Ind. 1982). The license to practice law "is a privilege rather than a natural or vested right." In re Holovachka, 245 Ind. 483, 510, 198 N.E.2d 381, 394 (1964) (citing In re Harrison, 231 Ind. 665, 667, 109 N.E.2d 722, 723 (1953)). Thus, as Chief Judge Benjamin Cardozo wrote, "`Membership in the bar is a privilege burdened with conditions.'" People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470, 162 N.E. 487, 489 (1928) (quoting In re Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783 (1917)). We have long noted the conditional nature of this privilege:
The privilege is contingent upon the faithful performance of the duties imposed upon the attorney by the society which grants him the privilege. The first and continuing requirement of an attorney is that he be of good moral character. Being of good moral character necessarily implies that he will conform to the moral standards of his profession as provided (1) by law, (2) by his oath of office and (3) by the code of ethics of the legal profession.
Baker et al. v. Keisker, 236 Ind. 617, 620, 142 N.E.2d 432, 434 (1957) (internal citation omitted). Dean Roscoe Pound reflected a similar sentiment:
[W]hat we mean by the term profession when we speak of the old recognized professions (medicine, the law, ministry). We mean an organized calling in which men pursue a learned art and are united in the pursuit of it as a public service-as I have said, no less a public service because they may make a livelihood thereby. Here, from the professional standpoint there are three essential ideas-organization, learning, and a spirit of public service. The gaining of a livelihood is not a professional consideration. Indeed, the professional spirit, the spirit of a public service, constantly curbs the urge of that instinct.
Dean Roscoe Pound, Address Before the Nebraska State Bar Association (Oct. 20, 1949), quoted in EDWIN M. OTTERBOURG, A STUDY OF UNAUTHORIZED PRACTICE OF LAW 2 (1951).
It is the province of this Court to determine what the practice of law is and what acts constitute the practice of law. Mittower, 693 N.E.2d at 558; Matter of Perrello, 270 Ind. 390, 398, 386 N.E.2d 174, 179 (1979). We have indicated:
The core element of practicing law is the giving of legal advice to a client and the placing of oneself in the very sensitive relationship wherein the confidence of the client, and the management of his affairs, is left totally in the hands of the attorney. The undertaking to minister to the legal problems of another creates an attorney-client relationship without regard to whether the services are actually performed by the one so undertaking the responsibility or are delegated or subcontracted to another.... [M]erely entering into such relationship constitutes the practice of law.
Id. The Court also explained:
[W]e do not recognize a division of the practice of law into a practice side and a business side. To manage any profession, there are incidental business elements that are a part of the total process. The performing of these business processes are a part of the total process and certainly cannot be separated and isolated from the total transaction. The conducting of the business management of a law practice, in conjunction with that practice, constitutes the practice of law.
Id. We have observed that "a person who gives legal advice to clients and transacts business for them in matters connected with the law in the settlement, adjustment, and compromise of claims is engaged in the practice of law." Fink v. Peden, 214 Ind. 584, 593, 17 N.E.2d 95, 99 (1938). See also State ex rel. Pearson v. Gould, 437 N.E.2d 41, 42 (Ind.1982). "Thus, the practice of law is not defined only as the giving of legal advice or acting in a representative capacity—it also had been extended by this Court to conducting the business management of a law practice." Matter of Thonert, 693 N.E.2d 559, 563 (Ind.1998) (per curiam).
Basic to the concept of "the practice of law" and to the term "attorney" is the element of one person acting as an agent or substitute for another, that is, as a representative with regard to legal matters whether in or out of court. Nardi v. Poinsatte, 46 F.2d 347, 348 (N.D.Ind.1931) ("The word `attorney' in its broadest sense means a substitute or an agent."). In defining the term "attorney," Black's Law Dictionary acknowledges that "[i]n the most general sense this term denotes an agent or substitute, or one who is appointed and authorized to act in the place or stead of another. An agent, or one acting on behalf of another." BLACK'S LAW DICTIONARY 128 (6th ed.1990) (citation omitted).
The majority holds that an insurance company does not necessarily engage in the unauthorized practice of law when house counsel represents insureds in liability claims litigation. I disagree and, like the trial court, am convinced that an insurance company does, in fact, engage in the unauthorized practice of law when its house counsel represents its insureds.
Anglo-American law has a long history, dating back more than seven hundred years, of limiting the practice of law to natural persons who meet certain qualifications. See Rhode Island Bar Ass'n v. Automobile Service Ass'n, 55 R.I. 122, 179 A. 139 (1935). This body of law was established in Indiana, and our statutes have explicitly proscribed the unauthorized practice of law for nearly a century. See, e.g., 1913 Ind. Acts ch. 347, § 1, p. 940; Pub.L. No. 2, § 3301 (1978). In its present version, the statute provides:
It is a Class B misdemeanor for a person to hold himself out as a practicing lawyer, to conduct the trial of a case in any court of this state, or to engage in the business of a practicing lawyer, without first having been duly admitted as an attorney-at-law by the supreme court of this state.
IND.CODE § 33-1-5-1 (1998). Another statute provides: "The practice of law by a person who is not an attorney is prohibited under IC 33-1-5." IND.CODE § 33-21-2-1 (1998). "Person" includes a corporation. IND.CODE § 35-41-1-22 (1998) (defining "person"); IND.CODE § 35-41-1-3 (1998) (applying definition to all statutes relating to penal offenses).
The Indiana Rules of Professional Conduct apply only to those persons who are admitted to the bar in Indiana. Rule 5.5 relates to the unauthorized practice of law and prohibits lawyers from "(a) practic[ing] law in a jurisdiction where doing so violates the regulation of the legal profession of that jurisdiction; or (b) assist[ing] a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law." Thus, Rule 5.5(b), in regulating attorney conduct, prohibits attorneys from assisting a person, which would include corporations and other organizational entities, in the performance of activities that constitute the unauthorized practice of law.
Thus, an important distinction exists between the application of the professional rules and the application of the statute prohibiting the unauthorized practice of law. The statute governs all persons, whether natural or legal, whether lawyers or non-lawyers. The Professional Conduct Rules regulate only the conduct of lawyers, but not that of non-lawyers, corporations, or other organizational entities. The unauthorized practice of law statute operates to prohibit conduct by both individuals and legal entities that the professional rules do not regulate. In so doing, the statute criminalizes conduct by natural and legal persons who are not subject to this Court's authority under the professional rules and thereby protects the public from the practice of law by individuals and entities not qualified to practice law.
The majority departs from this statutory proscription prohibiting the practice of law by legal entities not admitted as attorneys at law. Instead, it creates and announces a new judicial exemption, henceforth permitting "an unlicensed legal entity to employ licensed agents to perform those acts requiring a license." Op. at 160 (citation omitted). The majority then recognizes that "[i]n each case the lawfulness of the entity's activities turns on whether the individual is properly licensed." Op. at 160. The majority continues:
Regardless of whether a partnership, a professional corporation, an insurance company, or any other legal entity may be said to be practicing law in some sense, we believe the proper focus of the unauthorized practice inquiry is whether the challenged activity results in the "unauthorized" practice by the individuals involved.
Op. at 160 (footnote omitted).
The majority thus reshapes the law regarding the unauthorized practice of law, even referring to it as the "unlicensed practice of law," Op. at 158, and limits the unauthorized practice of law inquiry to the qualification and activity of the individuals (impliedly only natural persons) involved, such as when a disbarred attorney practices, an unlicensed person practices, or an out-of-state attorney practices without a license or proper approval. This new understanding obliterates the function of the statute in criminalizing conduct by both natural and legal persons who are not subject to this Court's authority under the professional rules. Under the majority's interpretation, only limited and indirect recourse is available against general business corporations and other organizational entities that employ licensed attorneys and hold them out to the public. I am convinced that the legislature intended a broader application of the statute than the majority's interpretation allows. I believe the statute presently proscribes entities from undertaking such activities.
Under Indiana statutory law, the unauthorized practice of law occurs when a person (whether natural or legal) not authorized to practice law in Indiana holds himself, herself, or itself out as a practicing lawyer, conducts a trial in a court, engages in the business of a practicing lawyer, or otherwise represents another person in a matter having legal consequences. The unauthorized practice of law statute is violated when either (1) an unlicensed individual engages in the practice of law, or (2) a person or entity, through its use of lawyers or non-lawyers, engages in the practice of law. Under this interpretation, recourse may be taken under this Court's Rules of Professional Conduct against attorneys who improperly practice law, and recourse may be taken under the unauthorized practice of law statute against persons, both real and legal, who engage in the unauthorized practice of law. This second means of recourse would include corporations and other entities that employ attorneys and hold them out to the public as providing legal services. I believe that Celina, through its use of a licensed attorney-employee, engaged in the unauthorized practice of law in violation of Indiana statutory law.
Under long-settled Anglo-American law, corporations and other organizational entities have been prohibited from practicing law. This black-letter law has governed the practice of law in Indiana, presumably since the state was founded. Just over eleven years ago, Chief Justice Shepard, writing for this Court, stated:
A corporation is a creature of statute and can neither practice law nor act in person. Out of court it must act through its agents, and in court it must generally act only through an agent who is a licensed attorney. The fundamental principles regarding the authority of an agent of a corporation are substantially the same as those applicable to agents generally.
Indiana Dep't of Public Welfare v. Chair Lance Service, Inc., 523 N.E.2d 1373, 1377 (Ind.1988). This Court has also said:
"The practice of the law is personal. It is open only to individuals proved to the satisfaction of the court to possess sufficient general knowledge and adequate special qualifications as to learning in the law and to be of good moral character.... A dual trust is imposed on attorneys at law: they must act with all good fidelity both to the courts and to their clients. They are bound by canons of ethics which have been the growth of long experience and which are enforced by the courts.
Practice of law under modern conditions consists in no small part of work performed outside of any court and having no immediate relation to proceedings in court.... Although these transactions may have no direct connection with court proceedings, they are always subject to become involved in litigation. They require in many aspects a high degree of legal skill, a wide experience with men and affairs, and great capacity for adaptation to difficult and complex situations. These `customary functions of an attorney or counsellor at law' ... bear an intimate relation to the administration of justice by the courts. No valid distinction ... can be drawn between that part of the work of the lawyer which involves appearance in court and that part which involves advice and drafting of instruments in his office. The work of the office lawyer is the groundwork for future contests in courts.... The underlying reasons which prevent corporations, associations and individuals other than members of the bar from appearing before the courts apply with equal force to the performance of these customary functions of attorneys and counsellors at law outside of courts."
Fink, 214 Ind. at 590-91, 17 N.E.2d at 97-98 (quoting In re Opinion of the Justices, 289 Mass. 607, 612, 194 N.E. 313, 316-17 (1935)) (internal citations omitted) (emphasis added).
Simply put, corporate and other organizational entities are unable to satisfy the admission requirements and thus are unable to be "duly admitted as ... attorney[s]-at-law by the supreme court of this state." See IND.CODE § 33-1-5-1. Numerous reasons have been offered in support of this body of law, including primarily the concern that harm would come to the public as corporate business interests invade the attorney-client relationship, as the independence of professional judgment is eroded, and as the trust and confidence placed in attorneys is threatened.
Corporations may employ attorneys in connection with matters that arise in the course of business, but the scope of their representation is limited. This principle was well-stated by the Committee on Unauthorized Practice of Law for the American Bar Association in an informative opinion: "While a corporation may employ legal counsel to render legal services to the corporation, such services are not the subject of barter on the market place by the corporate principal. This constitutes unauthorized practice of law by the corporate principal." ABA Comm. on Unauthorized Practice of Law, Informative Op. A (1967) (citing Land Title Abstract & Trust Co. v. Dworken, 129 Ohio St. 23, 1 O.O. 313, 193 N.E. 650 (1934); Steer v. Land Title Guarantee & Trust Co., 113 N.E.2d 763 (Ohio Ct.C.P.1953); Hexter Title & Abstract Co. v. Grievance Com., 142 Tex. 506, 179 S.W.2d 946 (1944)), reprinted in RES GESTAE, May 1967, at 31, 32.
Under Indiana law, every person is entitled to act as his or her own attorney both in and out of court and to assume the consequences of those acts so performed. State ex rel. Indiana State Bar Ass'n v. Indiana Real Estate Ass'n, Inc., 244 Ind. 214, 226 n. 2, 191 N.E.2d 711, 717 n. 2 (1963). This right, however, is possessed only by those who are the parties to the transaction. Id. at 226, 191 N.E.2d at 717. Only qualified, licensed attorneys may appear for other persons. Matter of Estate of Rondinelli, 692 N.E.2d 915, 918 (Ind.Ct. App.1998) ("only persons duly admitted to practice law in this state may appear on behalf of other persons") (citing Butler v. State, 668 N.E.2d 266, 268 (Ind.Ct.App. 1996)). See also Simmons v. Carter, 576 N.E.2d 1278, 1279 (Ind.Ct.App. 1991) ("[W]hile any natural person may appear in court on his or her own behalf, only persons duly admitted to practice may appear on behalf of other persons.").
This Court has discussed the application of these rules to organizational entities involved in out-of-court actions that have legal consequences:
We find no reason or authority for holding that a trust company, authorized by law to act as executor, administrator, guardian, or trustee, may not execute such trusts in the same manner and through the same agencies that may be resorted to by a natural person in the same situation, except, of course, that a natural person may act in propria persona, while a corporation must act through some natural person. If a natural person, who is not admitted to practice law, may do the things which the appellee has done without illegally practicing law, so can the trust company. If it is unwise to permit a corporation to act in a fiduciary capacity, the remedy is with the Legislature and not with the courts.
The practice of law is restricted to natural persons who have been licensed upon the basis of established character and competence as a protection to the public against lack of knowledge, skill, integrity, and fidelity. Disbarment procedure is available in the case of those who do not conform to proper practice. The practice of law involves advising or rendering services for another. A natural person may plead his own case in court or do any of the things for himself which if done for another would constitute practicing law. He may discuss the legal aspects of his affairs with other interested parties or with strangers. Either a natural person or a corporation may employ lawyers to do these things.
A corporation may choose its own attorney as freely as a natural person may do so. Where the services of an attorney are necessary in the execution of a trust, the trustee is charged with the responsibility of selecting an attorney and with the duty to exercise reasonable care in the selection, and a corporate fiduciary has the same duty and the same right as a natural person. A natural person acting as executor, administrator, guardian, or trustee, may choose his own personal attorney, employed by him on an annual salary basis, to perform services for his trust, without expense to the trust, or he may employ such a personal attorney at the expense of the trust, or he may employ some attorney with whom he has no business or professional connection. No reason is seen why a corporate fiduciary may not do the same....
Groninger, 220 Ind. at 206-208, 41 N.E.2d at 141-42.
We have also explained:
When a corporation becomes a party to a civil action its status to represent itself in that proceeding differs from that of an individual. The individual has a personal stake in the outcome of the litigation and can readily be identified as both a party litigant and an individual person. A corporation, however, although a person in the eyes of the law, cannot be wholly identified with any individual person and thus, by necessity, must be represented by its agents. Those agents can only have an indirect stake in the case for the reason that a corporation exists as an independent legal entity, separate and distinct from its shareholders, officers or any agents....
State ex rel. Western Parks, Inc. v. Bartholomew County Court, 270 Ind. 41, 44, 383 N.E.2d 290, 292-93 (1978). To this general rule, we have created a single, limited exception that presently applies in claims arising out of the business of the corporation that do not exceed $1,500 and that are filed as small claims, but then only after the corporation has designated an employee and satisfied specified filing requirements. Ind. Small Claims Rule 8(C).
Under the rules promulgated by this Court and accepted forms of practice, members of the Indiana bar are authorized to practice, individually or with other attorneys, in private law firms, in the legal departments of corporations or other public or private organizations, and in group legal service plans. See Prof. Cond. R. Preamble; Prof. Cond. R. 1.13; Ind. Admission and Discipline Rule 26. In addition to practicing in partnerships, corporate legal departments, and group legal service plans, attorneys are also authorized to practice in other organizational contexts: professional corporations, limited liability companies, and limited partnerships. See IND.CODE § 23-1.5-1; IND.CODE § 23-18-1; IND.CODE § 23-4-1; Admis. Disc. R. 27. Nevertheless, all members of the Indiana bar, regardless of the nature or context of their practices, are subject to the same ethical and legal obligations under the professional rules.
When attorneys practice in organizational contexts, certain limitations apply to the organizations themselves. For instance, with professional corporations, limited liability companies, and limited partnerships, statutory law and court rules place specific requirements on these organizations in terms of organizational purpose, activities, control, and liability. See IND.CODE § 23-1.5-1; IND.CODE § 23-18-1; IND.CODE § 23-4-1; Admis. Disc. R. 27. In the case of professional corporations, our statutes have authorized attorneys to form professional corporations "to render services that may legally be performed only by an attorney." IND.CODE § 23-1.5-2-3(3). However, these professional corporations "may render professional services only through individuals permitted to render such services in Indiana." IND.CODE § 23-1.5-2-5(a). And, "[a] licensed individual acting in his individual capacity may render professional services, even though the individual may be a shareholder, director, officer, employee, or agent of a professional corporation." IND.CODE § 23-1.5-2-5(b). Also, with group legal service plans, our professional rules require the group plans to meet certain conditions before an attorney may render services pursuant to the plan and to file an initial disclosure statement, annual reports, and a final report upon the discontinuation of operation; included in these mandated filings are the names of the attorneys rendering services under the plan. See Admis. Disc. R. 26.
The majority correctly notes that the Preamble to our Rules of Professional Conduct defines "firm" and "law firm" to include "lawyers employed in the legal department of a corporation or other organization." Prof. Cond. R. Preamble. The majority also correctly recognizes that attorneys may be retained or employed by corporations and may work in their legal departments and that Rule 1.13 applies to attorneys "employed or retained" by a corporation or other organization. Indeed, members of the Indiana bar who serve as house counsel are subject to the professional rules and the obligations arising therefrom, like all other attorneys in Indiana.
However, none of these statutory or rule provisions constitutes authorization for insurance companies to employ house counsel to represent their insureds. As already noted, corporate and other organizational entities often employ house counsel in their legal departments to represent the entities in their legal matters and transactions. Indeed, when it comes to an entity's own legal matters and transactions, there is no real difference between an entity employing attorneys as house counsel or as outside counsel. In both cases, the entity-client hires an attorney to provide legal services. Like any other person, an organization may secure counsel to represent the company in its own affairs—whether that attorney is a salaried attorney-employee or outside counsel is unimportant.
Indiana Professional Conduct Rule 1.13 states that "[a] lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents." Thus, Rule 1.13 contemplates that an attorney retained or employed by an organization represents the organization. Implicit in this rule is the idea that an attorney employed in the legal department of an organizational entity represents the organization in those transactions in which the organization has a primary interest. This was the understanding at common law that provides the background and context for our statute and our professional rules.
The trial court correctly held that Celina was engaged in the practice of law, that its practice was unauthorized, and that its house counsel assisted in this unauthorized practice. As to Celina's engaging in the practice of law, it held:
Celina does in fact engage in the practice of law when its salaried attorneys represent its insureds. A corporation acts through its agents and the acts of the agent are the acts of the corporation. Because Celina's attorneys are its agents, and the acts of those attorneys are therefore those of Celina, Celina is engaged in the corporate practice of law when it assigns its salaried attorneys to represent its insureds.
See Record at 1209 (internal citations and footnote omitted).
The majority rearranged the trial court's reasoning and reduced it to the following syllogism: "(1) the attorney-agents of Celina are engaged in the practice of law; (2) Celina, a corporation, can act only through agents; (3) the acts of the attorneys are those of Celina; therefore (4) Celina is engaged in the practice of law." Op. at 156. While the majority dismissively characterized this as "a syllogism based on a series of propositions of dubious general validity," op. at 160, I am not persuaded that the trial court's propositions are false or even dubious.
These propositions are well-established legal principles in Indiana law. First, the trial court states its conclusion that Celina is engaged in the practice of law when its house counsel represent its insureds. Next, the trial court recites the established legal principles that a corporation can only act through its agents and that the acts of a corporation's agents are the acts of the corporation. See Bud Wolf Chevrolet, Inc. v. Robertson, 519 N.E.2d 135, 137 (Ind. 1988) ("Actions of employees and agents of corporation, when done in the scope of their employment, are attributable to the corporation."); Hibschman Pontiac, Inc. v. Batchelor, 266 Ind. 310, 315, 362 N.E.2d 845, 848 (1977) ("A corporation can act only through its agents, and their acts, when done within the scope of their authority, are attributable to the corporation."); Soft Water Utilities, Inc. v. LeFevre, 159 Ind.App. 529, 539, 308 N.E.2d 395, 399 (1974) ("A corporation acts through its agents and the acts of the agent are the acts of the corporation.") (citing Johnston v. Baker, 445 F.2d 424 (3d Cir.1971); Pearson v. Youngstown Sheet & Tube Co., 332 F.2d 439 (7th Cir.1964); Nelson Radio & Supply Co. v. Motorola, Inc., 200 F.2d 911 (5th Cir.1952)); Evansville & Terre Haute R.R. Co. v. McKee, 99 Ind. 519, 522 (1885) ("Where the particular act [of an agent of a corporation] is within the scope of the agency, then it is, in legal contemplation, the act of the principal, no matter by what name the agent is designated[, as t]he material element is the authority of the agent, and not his mere name or position."). It logically follows that, because Celina is a corporate entity, Celina can only act through its agents, and the acts of Celina's agents are the acts of Celina.
Next, the trial court states that Celina's attorneys are its agents and that the acts of those attorneys in practicing law are the acts of Celina. When house counsel represents one of the insurance company's insureds, house counsel as an agent-attorney of the company is practicing law on behalf of the company; thus, the agent-attorney acts as the corporation in representing the third party. The attorney is not operating simply as counsel for the insurance company (conduct that is authorized by law). As an agent of the insurance company, the attorney's acts are the acts of the company, and the acts of the agent-attorney in representing insureds are properly attributed to the corporate entity. It is in this situation that the company undertakes the practice of law.
The trial court's deductive reasoning led to the conclusion that Celina, the corporation, was engaged in the practice of law. The trial court's reasoning is sound, and its conclusion is proper.
The trial court also determined that Celina's practice of law was unauthorized:
The next inquiry must then be whether Celina's corporate practice of law is unauthorized and therefore illegal. No statutory or common law prohibition exists directly proscribing the corporate practice of law.
However, the absence of such a direct prohibition does not end the inquiry. In 1983, the Indiana legislature enacted the Professional Corporation Act, allowing "one (1) or more attorneys [to] form a professional corporation to render services that may legally be performed only by an attorney." I.C. 23-1.5-3-3(a)(3). Pursuant to that statute and Article 7, § 4 of the Indiana Constitution, the Indiana Supreme Court promulgated Admission and Discipline Rule 27, which permits "[o]ne or more lawyers [to] form a professional corporation ... for the practice of law ..."
The promulgation of this rule leads to the inference that nonprofessional corporations may not practice law. If corporations other than professional corporations were allowed to practice law, no rule would be necessary to specifically permit professional corporations to practice law, for a professional corporation is merely a specialized type of corporation.
Further, in addition to the implied prohibition against the nonprofessional corporate practice of law, the Admission and Discipline Rules are devoid of a rule specifically permitting the practice of law by a nonprofessional corporation. The absence of such a rule, considered in conjunction with the rule pertaining to professional corporations, leads inescapably to the conclusion that only professional corporations are permitted to practice law. If the Indiana Supreme Court chose to do so, it could promulgate a rule permitting the nonprofessional corporate practice of law, just as it has with professional corporations. Instead, the Court has extended permission only to professional corporations, thereby barring nonprofessional corporations from the practice of law.
In some states with a statutory prohibition against a corporation's practicing law an exception provides for representation of the corporation itself. See 705 ILL. COMP. STAT. 220/1 & 5 (West 1997) (formerly codified at ILL.REV. STAT. ch. 32, par. 411 & 415 (1977)); see also Kittay v. Allstate Ins. Co., 78 Ill.App.3d 335, 33 Ill.Dec. 867, 397 N.E.2d 200, 202 (1979).
"The general meaning of the term,
practice law' orpractice of law,' is of common knowledge, although the boundaries of its definition may be indefinite as to some transactions. As generally understood, it is the doing or performing of services in a court of justice, in any matter depending therein, throughout its various stages, and in conformity with the adopted rules of procedure; but it is not confined to performing services in an action or proceeding pending in courts of justice, and, in a larger sense, it includes legal advice and counsel, and the preparation of legal instruments and contracts by which legal rights are secured, although such matter may or may not be depending in a court. To `practice law' is to carry on the business of an attorney at law; to do or practice that which an attorney or counselor at law is authorized to do and practice; to exercise the calling or profession of the law, usually for the purpose of gaining a livelihood, or at least for gain; to make it one's business to act for, and by the warrant of, others in legal formalities, negotiations, or proceedings."
Fink, 214 Ind. at 587-88, 17 N.E.2d at 96-97 (quoting 7 C.J.S. 703, § 3(g)) (emphasis omitted).
Unauthorized law practice can occur in two ways. A person who is not admitted to the bar of a jurisdiction may render legal services in that jurisdiction. Alternatively, a person or entity that is not authorized to practice law may hire a licensed lawyer and offer his or her services to another. In the second situation, the client is at least represented by counsel, but restrictions nevertheless apply because of a presumed threat of lay interference with the professional relationship.
STEPHEN GILLERS, REGULATION OF LAWYERS. PROBLEMS OF LAW AND ETHICS 599 (3d ed.1992).
From time to time situations arise in which a certain person, performing a certain service, is engaged in the practice of law and yet is not licensed to do so. That person is engaged in the unauthorized practice of law.
(a) Certain People May not Practice Law....
(b) Corporations Cannot Practice Law. A corporation must appear in courts by an attorney....
... Clearly, a corporation may hire an attorney as its employee to give it legal advice and perform legal services for it in transactions in which it is a party.
While the Supreme Court of Indiana has never been called upon to decide the question, this Committee believes that a corporation may not use people who are not lawyers to perform legal services. The Committee likewise believes that a corporation may not charge others a fee for legal advice or legal services rendered by persons in its employ.
ISBA Comm. on Unauthorized Practice of Law, Op. 1, at 12-14 (1962). See also 7 I.L.E. Corporations § 173, at 11 (1958) ("A corporation cannot in general practice a learned profession, and statutes prohibiting such practice are valid."); Glen D. Peters, Bootleggers in Law, 7 IND. L.J. 46, 53 (1931) ("It has been suggested and proposed in the legislature of [Indiana] that there be enacted a law, making it unlawful for a corporation to practice law. Now, it seems to me that that is utterly ridiculous. Of course, it is unlawful for a corporation to practice law. It is now unlawful, and it always has been unlawful for a corporation to practice law. The very statement of the proposition is its answer. It is just as sensible, it seems to me, to repeal the law of gravitation or to pass a law making it unlawful for objects to fall to the ground.").
The practice of law is not a business open to all, but a personal right, limited to a few persons of good moral character, with special qualifications ascertained and certified after a long course of study, both general and professional, and a thorough examination by a state board appointed for the purpose. The right to practice law is in the nature of a franchise from the state conferred only for merit. It cannot be assigned or inherited, but must be earned by hard study and good conduct. It is attested by a certificate of the Supreme Court, and is protected by registration. No one can practice law unless he has taken an oath of office and has become an officer of the court, subject to its discipline, liable to punishment for contempt in violating his duties as such, and to suspension or removal. It is not a lawful business except for members of the bar who have complied with all the conditions required by statute and the rules of the courts. As these conditions cannot be performed by a corporation, it follows that the practice of law is not a lawful business for a corporation to engage in. As it cannot practice law directly, it cannot indirectly by employing competent lawyers to practice for it, as that would be an evasion which the law will not tolerate....
The relation of attorney and client is that of master and servant in a limited and dignified sense, and it involves the highest trust and confidence. It cannot be delegated without consent, and it cannot exist between an attorney employed by a corporation to practice law for it, and a client of the corporation, for he would be subject to the directions of the corporation, and not to the directions of the client. There would be neither contract nor privity between him and the client, and he would not owe even the duty of counsel to the actual litigant. The corporation would control the litigation, the money earned would belong to the corporation, and the attorney would be responsible to the corporation only. His master would not be the client, but the corporation, conducted it may be wholly by laymen, organized simply to make money, and not to aid in the administration of justice which is the highest function of an attorney and counselor at law. The corporation might not have a lawyer among its stockholders, directors, or officers. Its members might be without character, learning or standing. There would be no remedy by attachment or disbarment to protect the public from imposition or fraud, no stimulus to good conduct from the traditions of an ancient and honorable profession, and no guide except the sordid purpose to earn money for stockholders. The bar, which is an institution of the highest usefulness and standing, would be degraded if even its humblest member became subject to the orders of a money-making corporation engaged not in conducting litigation for itself, but in the business of conducting litigation for others. The degradation of the bar is an injury to the state.
A corporation can neither practice law nor hire lawyers to carry on the business of practicing law for it any more than it can practice medicine or dentistry by hiring doctors or dentists to act for it.
In re Co-operative, 92 N.E. at 16 (internal citations omitted).
(C) Appearance. A natural person may appear pro se or by counsel in any small claims proceeding. A corporation must appear by counsel or, in unassigned claims not exceeding one thousand five hundred dollars ($1,500), by a full-time employee of the corporation designated by the Board of Directors to appear as the corporation in the presentation or defense of claims arising out of the business of the corporation. In unassigned claims not exceeding one thousand five hundred dollars ($1,500), a sole proprietor or partnership may appear by a designated full-time employee of the business in the presentation or defense of claims arising out of the business.
...
No person who is disbarred or suspended from the practice of law in Indiana or any other jurisdiction may appear for a corporation or on behalf of a sole proprietor or partnership under this rule.
Ind. Small Claims Rule 8(C).
Syllogism I: (1) a corporation can only act through its agents, and the acts of its agents are the acts of the corporation; (2) Celina is a corporation; therefore, (3) Celina can only act through its agents, and the acts of Celina's agents are the acts of Celina.
Syllogism II: (3) Celina can only act through its agents, and the acts of Celina's agents are the acts of Celina; (4) Celina's attorneys are its agents and are practicing law; therefore, (5) Celina, the corporation, is practicing law.
See Record at 1209.
Rule 1.8(f) is largely superfluous, for its treatment of situations in which one party pays a lawyer to provide services for another adds little to what is already required by Rule 1.7(b). In the words of that rule, a lawyer's relationship to a third-party provider of legal services plainly constitutes an "other responsibility" that may "materially limit the representation." Both rules accordingly condition the representation upon client consent after consultation. Obviously, the lawyer must be loyal to the client, not the one who is footing the bill.
1 HAZARD & HODES, supra, at 276. Furthermore, "[n]o substantive difference was intended" by the difference in wording. Id. at 276.1.