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                                         96 N.J.L.J. 1
                                        January 4, 1973

COMMITTEE ON THE UNAUTHORIZED PRACTICE OF LAW

Appointed by the New Jersey Supreme Court

OPINION 12

Corporation Offering to Prepare Certificate of
Incorporation and Trust Agreement to be Filed with
Internal Revenue Service

    May a corporation, engaged in the business of selling pension plans to professional organizations, offer, for a stated fee, payable to the corporation, to have all incorporation papers prepared by the corporation's attorney and to complete and file with the Internal Revenue Service a qualified corporate trust agreement?
    In Opinion 2, 92 N.J.L.J. 313 (1969), the Committee determined that if an accountant, not a member of the New Jersey bar, acting for another, prepared a certificate of incorporation for filing with the Secretary of State it constituted the unauthorized practice of law. The Committee held that the preparation of a corporate charter, by-laws and resolutions and relative activities all required expert legal skill and knowledge and constitute the practice of law.
    The opinion further stated that the fact that the certificate of incorporation follows a prepared form available to the public generally will not mitigate the offense of unlawful practice, since the discretion and judgment exercised in determining the proper contents and the consequences thereof fall within the province of an attorney.

    In view of the foregoing it is clear that the offer of a corporation to form a corporation constitutes the unauthorized practice of law. The fact that the corporation may have the incorporation papers prepared by its attorney does not mitigate the offense, as the attorney would be acting for the corporation by which he was retained, not for the principals who were interested in the formation of the corporation.
    Likewise, the preparation of a qualified trust agreement for filing with the Internal Revenue Service requires expert legal skill and knowledge of the Internal Revenue Code and Regulations, as well as general trust law, and constitutes the practice of law. If the corporation has its own attorney prepare the trust agreements he would be acting for the corporation which retained him, not for the parties entering into the trust agreement.
    Both situations also involve the solicitation of business on behalf of a corporation's attorney and do indirectly that which the attorney could not do directly.
    Notwithstanding the foregoing, it shall not be deemed the practice of law to furnish a form of plan or a plan and related trust in respect to which a written opinion has been issued by the Internal Revenue Service as to the acceptability of the form under Sections 401(a) and 501(a) of the Internal Revenue Code of 1954 or similar provisions of future codes, or to furnish a form of plan or trust that is clearly labeled to be a specimen only for guidance of counsel. Where a form in respect to which a written opinion has been issued by the Internal Revenue Service is furnished, the sponsor should encourage the employer to consult with his own attorney with regard to the adoption of the plan and the sponsor should make it clear to the employer that neither the sponsor nor any of its agents can undertake to qualify the plan with the Internal Revenue Service.

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