Posted Mar 28, 2005 01:10 pm CST
Jeffrey Silver of Dix Hills, N.Y., is an attorney and a certified public accountant. He spends most of his time doing general tax advising and filing for his clients–issues where the question of whether he’s acting as the client’s attorney or CPA is irrelevant. “Ninety nine percent of the time, it doesn’t matter,” Silver says. “My clients are not confused by the two titles. Being both just lends a greater sense of expertise and credibility.”
But every once in a while, it becomes critically important to distinguish between hats, such as when Silver is asked for an opinion about the legality of a particular tax shelter, for example.
That is why Silver keeps two separate sets of stationery, one with his CPA credentials and the other identifying him as an attorney. When it becomes clear that attorney client privilege is important, Silver uses the attorney letterhead to correspond with the client. “Sometimes, there are red flags. When you start to review someone’s case and it becomes clear that it’s going to go beyond review and into court, it’s clear to me that I am acting as an attorney,” says Silver.
Silver suggests that dual CPA attorney licensees talk to their state bar ethics counsel as well as the governing authority for CPAs in their state for guidelines. He also recommends talking with malpractice carriers for both types of professions. Silver carries both legal and fiduciary malpractice insurance and says each carrier makes it clear that it does not cover actions attributable to his other profession.
Silver says that on the rare occasions when he does shift from being a client’s CPA to being its attorney, he makes the change clear to the client in writing, explaining how it affects his representation. Most of the time, though, the nature of his representation is clear from the moment he takes a client on. “Maybe I’m lucky, maybe I’m naive. But I do think about it,” says Silver.
Dana Johnson also knows the pitfalls of wearing two professional hats. The Malden, Mass., lawyer is also a rehabilitation counselor for people who have been injured and need to be retrained for new jobs.
Johnson says she finds that she uses her counseling skills when working with her law clients. But occasionally, there are also conflicts. She offers the example of a client who calls her and says his doctor doesn’t want him to return to work, but he needs to work to support himself and his family.
“As a lawyer I am going to say, ‘Stay home,’ because that helps his case–we’re trying to prove he is disabled and entitled to compensation. As a counselor, I am going to say that only he can determine what’s best for his own life. If he needs to return to work, he should,” she says.
Johnson says the key for her is to make sure the client always knows whether her advice springs from her role as lawyer or rehab counselor. “I have a tendency to overexplain everything anyway. I tell them following my advice may cost them either way, but it’s their life choice.”
Jonathan Stein of Elk Grove, Calif., is a lawyer and also a certified property casualty underwriter. He also takes steps to make it clear to his clients which hat he is wearing when giving advice. For example, when he conducts coverage reviews for other lawyers, he makes it clear in his correspondence that he’s acting as an insurance professional, not as a lawyer.
Though the canons of his insurance license require him to report ethical violations by other insurance professionals, Stein knows that if he’s representing a client as a lawyer, he is bound by attorney client privilege. Though he’s never faced such a conflict in his practice, he knows what he would do. “No contest,” he says. “Legal ethics win.”