Lawyer Possession of Various Enterprise Constructions: A Tiny Step Towards the Future

On this article, we look at Formal Opinion 499 simply issued by the American Bar Affiliation’s Standing Committee on Ethics and Skilled Accountability. The title of the Opinion is Passive Funding in Various Enterprise Constructions, and it addresses whether or not and in what circumstances attorneys could also be concerned in various enterprise buildings (ABS). We’ll have a look at the Opinion from two views: what (restricted) progress it represents in addressing the necessity to reform the regulatory system governing attorneys; and what it leaves undone, hopefully to be addressed one other day.

What Opinion 499 Does Tackle

The Digest of the Opinion reads as follows:

A lawyer might passively put money into a regulation agency that features nonlawyer house owners (“Various Enterprise Constructions” or “ABS”) working in a jurisdiction that allows ABS entities, even when the lawyer is admitted to apply regulation in a jurisdiction that doesn’t authorize nonlawyer possession of regulation corporations. [footnote omitted]. To keep away from transgressing Mannequin Rule 5.4 or different Mannequin Guidelines and to keep away from imputation of conflicts below Mannequin Rule 1.10, a passively investing lawyer should not apply regulation via the ABS or be held out as a lawyer related to the ABS and can’t have entry to data protected by Mannequin Rule 1.6 with out the ABS shopper’s knowledgeable consent or compliance with an relevant exception to Rule 1.6 adopted by the ABS jurisdiction. The truth that a battle may come up sooner or later between the investing lawyer’s apply and the ABS’s work for its shoppers doesn’t imply that the lawyer can not make a passive funding within the ABS. If, nonetheless, on the time of the funding the lawyer’s funding would create a private curiosity battle below Mannequin Rule 1.7(a)(2), the lawyer should chorus from the funding or appropriately handle the battle below Mannequin Rule 1.7(b).

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