Concept

Services Not Distinct From Practice

Law-related services and when the Rules of Professional Conduct apply (Rule 5.7(a))

Services Not Distinct From Practice

Rule 5.7(a)(1) brings a law-related service under the Rules of Professional Conduct whenever the lawyer provides it "in circumstances that are not distinct from the lawyer's provision of legal services to clients."¹ That clause is an independent ground of coverage. The text joins it to the second circumstance with the word "or," so meeting either one is enough.² Only the second circumstance mentions a lawyer's failure to take reasonable measures to inform recipients that the services are not legal services; the first says nothing about what the recipient was told.³

Distinctness is something the lawyer has to build. When a service appears ancillary to a law practice and the lawyer has taken no affirmative step to separate it from her practice of law, the client is entitled to a reasonable expectation that the lawyer will perform the service in a manner that fully comports with her professional duties.⁴ Two situations therefore fall within the first circumstance. In one, the lawyer folds the service into the practice itself. In the other, the service only appears to be part of the practice, because nothing the lawyer has done sets it apart. In both, the recipient sees one combined offering from one lawyer.⁵

The reason runs through what the recipient can see. A client who receives a law-related service from the lawyer handling her legal matter has no apparent reason to think the second service differs in kind from the first, so she reasonably expects the lawyer's duties to cover both. Those duties are concrete: protecting confidential information, avoiding conflicts of interest, maintaining professional independence, and advertising ethically.⁶ Coverage therefore turns on the steps the lawyer has actually taken to separate the service, not on what she chooses to call it.

For the same reason, a disclaimer cannot rescue the lawyer under this trigger. Notice appears only in the second circumstance, which applies when the lawyer "fails to take reasonable measures" to tell recipients that the services are not legal services; the first circumstance has no comparable clause.⁷ Notice is also never enough by itself. The traditional protections of the attorney-client relationship attach unless the lawyer both performs the services in a manner distinctly separate from the legal practice and takes reasonable measures to ensure that the recipient knows the services are not legal services.⁸ A sentence on a form cannot supply a separation that the lawyer's own practice never drew.

Coverage reaches the whole handling of the service, and it carries an evidentiary benefit with it. When a lawyer performs services for a client in the context of a legal practice, as distinguished from a separate business even if law-related, the presumption should be that the client genuinely was seeking legal advice and that communications with the attorney fall within the privilege.⁹

Separation is necessary, but it does not suffice. A lawyer who clears the first circumstance still faces the second whenever she controls an entity that provides the services, because avoiding the traditional protections takes separation and notice together.¹⁰

Hypothetical Illustration

A tax lawyer advises a client on the sale of rental property and, in the same meetings and with the same assistant, also counsels the client on investing the proceeds. No step separates the two services, and the client sees one engagement. The circumstances are not distinct, so the lawyer must protect the client's confidences, avoid conflicts, and keep her independent judgment in giving the investment advice, whatever the client has been told.

Across town, another lawyer owns an investment counseling firm with its own office, its own staff, and its own name, and she never takes up a client's investments during a legal engagement. The firm's services are distinct from any legal service, so the first circumstance does not reach them. She controls the firm, however, so the second circumstance still requires a look at what she did to inform the firm's customers.

On an exam, ask what, if anything, visibly separates the law-related service from the legal work. Tax advice and investment counseling delivered in one meeting answer that question against the lawyer, and no disclaimer in the stem changes the result. A separately staffed, separately housed business answers it for the lawyer on this trigger, but the analysis then moves on to the second circumstance.

Services Not Distinct From Practice

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