Ethics Watch

• Citation: Vol. 34 No. 4 Pg. 15
• Publication year: 2023
• Pages: 15

Ethics Watch Vol. 34 Issue 4 Pg. 15 South Carolina Bar Journal January, 2023

Ancillary Business Ethics

By Nathan M. Crystal.

Writing in 1944, Dean Roscoe Pound of the Harvard Law School raised the issue of "What is a Profession?" and how the concept of a profession related to business matters. Roscoe Pound, What is a Profession? The Rise of the Legal Profession in Antiquity, 19 Notre Dame L. 203 (1944). Dean Pound argued that a profession had three essential elements: organization, learning, and a spirit of public service. The business aspects of the profession were to Dean Pound "incidental." Id. at 204.

The legal profession has changed radically since Dean Pound's day. With the constitutional protection given by the Supreme Court to lawyer advertising, coupled with competitive trends in the profession coming both internally and from client pressure, it would be fair to say that the business and professional aspects are equipoised. Lawyers and law firms today face many difficult business decisions that they, of course, must reconcile with their ethical and other professional obligations. Lawyer advertising is one of the major topics of business decisions that lawyers and law firms face, but there are a range of other activities in which business/professional decisions must be made. One such area is that of "ancillary business activities," the topic of this Ethics Watch.

Beginning in the 1980s a number of major law firms began offering their clients law-related services, such as lobbying, legislative, and government relations services; tax, investment, and financial consulting; international trade services; environmental consulting; real estate brokerage and development services; labor relations services; economic research; and public affairs and media relations services. The American Bar Association at first rejected a proposed ethics rules that would have allowed such services, but then reversed course and adopted what is now Model Rule 5.7. (South Carolina has this rule). For a history of these developments see Nathan M. Crystal & Grace M. Giesel, Professional Responsibility: Problems of Practice and the Profession 629-630 (7^th Ed. 2020).

Rule 5.7 applies to "law-related services," which are defined as services reasonably related to the practice of law and that would not constitute the unauthorized practice of law when performed by a nonlawyer. Id. 5.7(b). The rule provides two standards for determining if the Rules of...