Consequences of Coverage

Consequences of Coverage

Rule 5.7(a) states its consequence in one clause: a lawyer “shall be subject to the Rules of Professional Conduct with respect to the provision of law-related services” whenever the services are provided in the circumstances the rule lists.¹ Coverage therefore makes the service itself regulated professional conduct. The earlier sections asked when coverage attaches. This section asks what the lawyer owes once it does.

Four duties come with coverage, and each protects a client who reasonably expects it. When a service appears ancillary to a law practice and the lawyer has taken no affirmative step to separate it, the client may count on the lawyer to protect confidential information, avoid conflicts of interest, maintain professional independence, and advertise ethically.²

The lawyer escapes those duties only by separating the service, and separation has two parts. Unless the lawyer both performs the services in a manner distinctly separate from the legal practice and takes reasonable measures to ensure that the person obtaining them knows they are not legal services, the traditional protections of the attorney-client relationship attach.³ The test looks at how the lawyer delivers and presents the service. It does not ask whether the recipient also received legal advice, so a customer who buys only the law-related service holds the protections that attach to it.

Without the appearance of a connection to the practice, none of these duties attach. That a lawyer owns or operates a restaurant does not make dinnertime conversations confidential, does not make the diners people to whom the lawyer owes loyalty, and does not subject the restaurant’s advertising to the limits on lawyer advertising.⁴ The result changes when the lawyer connects an ordinarily unrelated activity directly to the practice. A restaurant run as the in-house cafeteria for the lawyer’s firm implicates professional responsibility, because the lawyer must ensure that the people employed there understand the need to keep confidential the legal subjects the lawyers discuss while eating.⁵

The same reasoning governs the ordinary ancillary services of a law office. Suppose a firm offers copying and word processing alongside its legal work. The services appear ancillary to the practice, and unless the firm separates them, the client reasonably expects them to be performed in a manner that protects confidential information.⁶ As the cafeteria shows, that expectation binds the people who do the work. The lawyer must make sure the employees who handle client documents understand the need for confidentiality.⁷ The assistant who copies a client’s settlement papers sees what the lawyer sees, and the lawyer cannot hand off the duty along with the task.

Privilege is a separate consequence. If a lawyer has performed services for a client in the context of a legal practice, as distinguished from a separate business, even a law-related one, the presumption is that the client genuinely was seeking legal advice and that her communications with the attorney fall within the privilege.⁸ Suppose a client asks her lawyer, within the practice, to prepare a tax return and shares her finances to make that possible. If the opposing party later claims she wanted bookkeeping and not advice, the presumption answers him: she was seeking legal advice, and the communications are privileged. The presumption is framed for services performed within the practice. It does not reach the separate business.⁹

The presumption asks a different question from Rule 5.7(a), since it asks whether communications are privileged and not whether the Rules govern the service. Both inquiries start from the same fact, whether the lawyer delivered the service within the practice or apart from it.