LEGAL
ETHICS
WILLIAM
GARRY
1
PROBLEM
BAKER
PROBLEM 16
NOTE: For the sake of writing a more formal opinion, I have change
the designation of the lawyer from the second to the third person,
giving him the name Larry lawyer.
Iarrimore Lawyer was at a dinner party on Saturday night and
another of the guests learned that he was a lawyer. She asked
him a "hypothetical problem" about a "friend of hers." After
listening to her story, he said, "That person should see a lawyer."
She replied, "When can I make an appointment?" He said, "How about
next Thursday?"
The next day, Larry was asked by his church to conduct a session
on estate planning for wealthy members of churches of that
denomination in the community. That evening, he spoke for approximately one hour on the benefits of giving appreciated stock,
making inter-vivos gifts with a retained life estate, and so on.
After his talk, a listener came up to him and said, "You know your
stuff. I'd like for you to be my lawyer."
On Monday, morning, Larry implemented a routine procedure In his office
whereby five years after he had drafted a will for someone, he sent
out a personal letter saying, "Most people find that their assets
and family situation have changed sufficiently in five years that
they ought to think about having changes made in their will. Why
don't you stop In soon and have a routine legal check-up? It will
put your mind at ease."
2
OPINION
Three separate but related issues are discernable from the
foregoing facts, each with
its ancillary considerations:
I. What ought Larry's reactions be, as a responsible attorney,
to the guest's submission to him of the "hypothetical problem"
concerning a "friend of hers" and her subsequent request for a
personal appointment with respect to the same problem? Specifically, was his response, "How about next Thursday?" a proper one?
In this regard, was his advice, "That person should see a lawyer,"
A. "volunteered" or
B. "ill-motivated", so as to disqualify him from
her?
II.
employment by
May larry properly accept employment by the church member who
had just listened to his lecture on estate planning? With respect
to this second issue:
A. What limitations are
providing services to
pitfalls include:
placed on him and the church in
the congregation? Potential
(i)
any use of larryJs name or the names of any of his
partners or associates;
(ii)
any potential for self-laudation; and
'(iii) any predetermined purpose of such a gathering to
render individualized legal services, rather than
educate the public in legal matters.
III. Is the regular practice of sending out letters to clients, whose
wills Larry has drafted, recommending that they have a routine
legal check-up a proper one? What about:
A. the clients' interests; and
B. this practice with old or regular clients as opposed to new
or potential clients?
All three issues fall within.the parameters of Camion 2 of the
American Bar Association Code of Professional Responsibility. It
reads:
A lawyer Should Assist the Legal Profession in Fulfilling
Its Duty to Make Legal Counsel Available."1
O
The Code thus recognizes an affirmative
profession to provide
obligation of the legal
2
access to the legal system.
however, the limitations
on solicitation of clients appears in the
Disciplinary Rules under that same Can.1 on.
entailed
Oddly enough,
Pertinent to all Issues
herein is DR 2-104., which reads in its relevant portion:
"A lawyer who
has given unsolicited advice to a layman that he
should obtain counsel or take legal action shall not accept employ's
ment resulting from that advice. . ..
Balanced somewhere on the
horns of this delimma, we will embark on the examination of each
of the issues before us, in the expectation that the Ethical Considerations
found In the ABA CPR and other sources of authority will enlighten us
on the proper course of
(RE:
EC 2-3 says:
professional conduct.
I.
"Hypothetical Problem at dinner party)
"Whether a lawyer acts
properly In volunteering
advice to a layman to seek legal services depends upon the circumstances.
The giving of advice that one should take legal action could well be in
fulfillment of the duty of the
legal profession to assist laymen in
recognizing legal problems. . .."
(Emphasis a d d e d . T h e
foremost
question raised by Larry Lawyer's advice to reatin an attorney is
whether such advice was "volunteered," as that term Is used by the ABA,
and further,
actively seeks it.
arhn'r-P PAN "he "vnlnnt.eprpH" when the layman
"The Cannons of Professional Ethics of the
American Bar Association
and the decisions of the courts quite
generally prohibit the direct solicitation of business for gain by
an attorney either through advertisement or personal communication; and
also condemn the procuring of business by indirection through touters
of any kind.Similarly, the American Bar Association Cannons of
Professional Ethics, CanrOn 28, provides, in essence, that it is
4
disreputable for an attorney to breed litigation
those who
by
seeking out
have claims in order to secure them as clients, or to
employ agents or runners, or to reward those who bring or influence
the bringing of business to
7
such conduct.
his law office.^
DR 2-130 adds:
ment as a private practitioner
And DR 2-103 B & C proscribe
"A lawyer shll not recommend employof
himself, hisgpartner, or associate
to a non-lawyer who has not sought his advice."
All of these imply
that there is some element of affirmative action and even initiation of
the intercourse between a lawyer and a layman in the "volunteering" of
services or advice.
advice.
Also, involved is the motivation for
giving such
" . . . the advice is improper
if motivated by a desire to
g
obtain personal benefit . . ..'
Hence, we may conclude that the
"volunteering" of services is the active solicitation of employment
motivated by personal gain.
It is dubious that such was the case here.
First of all, the
guest phrased her question deceptively, so as to give the impression
that the problem was that of one of her friends.
particularly
There Is nothing
odd about one friend asking another friend to "feel out"
his or her legal
position, especially if he or she. knew that such
other friend would be seeing an attorney on a social basis.
Perhaps
intuition should have told larry that the problem might actually be
that of
been:
the asking guest, in which case a proper inquiry would have
"Is this 5T0UR problem?"
But to chastise a lawyer for his
lack of intuitive abilities seems frivilous and unproductive.
The guest,
here, approached Larry with the problem, and there was no active effort
on his pr-jrt to "seek out" a situation leading to
his retention.
As to
his response, "That person should see a lawyer," there was no intimation
thereby that the person with the
legal problem, still unknown to him,
should seek HIS advice.
Moreover, it is often preferable to suggest
that legal cousel be sought, than to offer ad hoc advice without a
complete investigation of the legal ramifications of the matter at
hand.
Often, minute changes in facts could render such advice improper.10
EC 2-3 provides, in part that " . . . the giving of advice that
one should take legal action could well be in fulfilment of the
duty of the legal profession to assist laymen in recognizing legal
problems."
(And in this connection, the ABA ". . . wishes to re-
empha'sige. • .the importance of all lawyers' striving to make legal
12
services available within the bounds of professional responsibility."
But once again, the test becomes laudable motivation, as further stated
by EC 2-3:
desire to
tions.
" * * * The advice is proper only if motivated by a
protect
one who is ignorant of
his legal rights or obliga-
Hence, the advice is improper If motivated
by a desire to
obtain personal benefit, secure personal publicity, or cause litigation to be brought merely to harass or injure another."
Certainly,
the advice to see a lawyer was prompted by Larry's professional judgment
that the guest ultimately should be
apprised of and have adequate
representation of her legal rights.
It could not reasonably be said
that Larry was ill-motivated by publicity, a desire to harass, or even
a desire for personal benefit.
His was simply a response commensurate
with the question put to him, nothing more and nothing less.
offered his personal services, nor gave misleading
He neither
advice.
Having resolved both the matters of solicitation and motivation
in larry Lawyer's favor, there would seem to be
to his handling the case.
no further
In fact, assuming (because
impediment
of the social
context in which we find the interchange) that the guest was a
personal friend of Larry's, DR 2-104- would
suggest that Larry may
accept the case, even though he might be precluded from doing so given
another
set
of circumstances:
ft
"(A) A lawyer who has given unsolicited advice to a layman that he
should obtain counsel or take legal action shall not accept employment
resulting from that advice, except that:
."(l) A lawyer may accept employment by a close friend, . .
This disciplinary rule would allow Larry to accept the curious guest as
a client, were he a close friend, even if his advice had veen unsolicited.
In conclusion, then, Larry's acceptance of the guest's offer to retain
him on the case Is in no way violative of the CPR's Disciplinary rules.
Her indirect
approach in seeking his services
in no way changes this.
II.
(RE:
Church session on estate planning)
It is well to recognize, before delving into the specifics of this
second issue, that the United States Suprene Court has tended toward
a recognition of an individual's "right to know" legal rights.
It is
suggested that such a right, like the associational right, may be
derived as a logical extension of the First Amendment right to petition
13
the courts.
Although the courts have not yet recognized this right
as one of universal application, or even been cognizant of it with
case
respect to ej close in its facts to the present one, such a trend
nevertheless lends added
import to the fundamental goal of accessa-
bility tc lawyers and the law.
Its relevance here is only by way of
giving due recognition to an undertone which is being
in all the areas under the purview of' Canon 2.
more
widely felt
That a favorable
attitude towards being more "open is surfacing is indicated by the 1975
Proposed Changes in Canon 2, drafted by the ABA Standing Committee
on
Ethics, which evince a willingness to allow lawyers more latitude
in advertising and publicity.
It must not be overlooked, however, that the compiling need for
the legal profession to serve the public has been long recognized.
EC 2-1 explains:
"The need of members of the public for legal
services is met only if they recognize their legal problems, appreciate
the
importance of seeking legal assistance, and are able to
obtain the services of acceptable legal cousel.
Hence, important
functions of the legal profession are to educate laymen to recognize
1L
their problems . . .."
EC 2-2 continues:
"The legal profession
should assist laymen to recognize legal problems because such problems
may not be self-revealing and often are not timely noticed.
Therefore,
lawyers acting under proper auspices should encourage and participate
in educational and public relations
programs concerning our legal
system with particular reference to legal problems that frequently
arise. * * * Examples of permissible activities
15 include.; . .participation
in seminars, lectures, and civic
programs."
"It is not only the
right but the duty of the profession as a whole to utilize such
methods fi.s may be developed to
to those who
bring the services of its members
need them, so long as this can be done ethically and
16
with dignity."
"We recognize a distinction between teaching the
lay public the importance of
solicitation of
securing legal services and the
1r
professional employment by or for a particualr lawyer."
At first glance, then, the ABA apparently would condon larry's
lecture to his church group.
However, this is not a foregone conclusion,
and
more
extensive
probing
reveals
several difficulties.
Vast
obvious
is the
fact
that most
concern
with sufficient
availability of
legal
18
services arises out of a concern for the poor or ignorant.
8
Assuredly, there is a need on the part of any segment of the public
for legal services, but the members of the congregation to whom Iarry
lectured were wealthy and therefore capable of paying for the same
information on an individual bases. . Thus, the point in question
becomes whether this in any wise makes the lecture any less desirable
or less ethical
or dignified.
Certainly not.
While concern for
public need becomes more legitimate when talking about poverty,
ignorance of the workings of the law is common to all socio-economic
classes.
And while the need, so often spoken of, may vary in degree
and type, depending upon relative income, a legitimate need nonetheless
exists.
"law is not self applying; men must apply and utilize it in
concrete cases.
But
the ordinary man is incapable.
He cannot know
the principles of law or the rules guiding the machinery of law
administration; he does no know how to formulate his desires with
precision and
to
put them into writing, and he is therefore ineffective
19
in the presentation of his claims."
An added dimension is raised by the subjectmatter Larry
discussed, viz., "benefits of giving appreciated stock, making intervivos gifts with a
for
public
litigation.
retained life estate, and so on."
The concern
education centers around the desirability of preventing
"The obligation to provide legal services for those
actually cqught up in litigation carries with it the
obligation to
make preventative legal advice accessible to all. * * * If it is not
received
in
time, the most
20
court nay come too late."
valiant and skillful representation in
It can hardly be said that those topics
discussed by Larry, have as their primary function the prevention of
future litigation.
But, estate planning is a matter of great concern to
moneyed persons who wish to preserve their estate.
.j
And the need of the
general public to have some understanding of how to give legal effect
to their testimentary intentions is recognized
by the ABA.
"As a
public service, the bar has in the past addressed the public as to
the importance of making wills, consulting counsel in connection with
real estate
transactions, etc."21
Thus, after considerable discussion, there appears to be no real
objection to either larry1s audience or his subjectmatter.
We
trun now to the more critical questions of self-laudation and the
volunteering of services.
"'Self-laudation
is a very flexible concept; Canon 27 does not
define it, so what course of conduct would
be said to consitute it
under a given state of facts would no doubt vary as the opinions of men
vary.
As a famous Englich judge said, it would vary as the length
of the Chancelor's foot.
It must be
In words and tone that will
"offend the traditions and lower the tone of our profession.1
it does this it is 'reprehensible.'
which 'self-laudation'
This seems to be
is measured."
said, Larry's conduct would
be
When
the test by
Based on all that has beeh
reprehensible if his speech was
23
". . . motivated by a desire to
secure personal
publicity . . .."
DR 2-101:
"(A) A lawyer shall not . . . participate in . . . any form of
public
communication that contains prefessional self-laudatory statements
calculated•to attract lay cliets. * * *
"(B) A lawyer shall not publicize himself, or his
partner or associate,
or any other lawyer affilliated with him or his firm as a lawyer
through newspaper or
magazine advertisements, radio or television
announcements, display advertisements in
or other means of publicity, nor shall
city or telephone directories,
he authorize or permit
others to do so on his behalf. " (Empahsis added.
Despite this, "(there is a recognized) distinction between teaching
m
the lay
public the importance of securing legal services . , . and the
solicitation of professional employment by or for a particualr lawyer.
The former tends to promote the public interest, and enhance the
public estimation
of the profession.
The latter Is calculated to
injure the public and degrade the profession."
25
So, while educating the
public is not only condoned but encouraged, an attorney so
engaged
26
shoul "shun personl
publicity-"
speaks for the purpose
Further, "A lawyer who writes or
of educating
members
of the public to
recognize their legal problems should carefully refrain from giving or
appearing to
give a general solution applicable to all apparently
similar individual problems, since slight changes
may require a material
the
vaiance
in fact situations
in the applicable advice; otherwise,
public may be misled and misadvised.
Talks and writings by
lawyers should caution them not to attempt to solve individual
27 problems upon the
In giving
vasis of the information contained therein."
his speech larry has not violated and of these
boundaries.
Would he be entering forbidden territory if he were to accept employment
by the member of the congregation who had just listened to his
't
speech and been
At least there
set
impressed by his knowledge
of the law?
Is no disciplinary rule precluding it.
out a general prohibition against a lawyer's
employment
Evidently not.
DR 2-104- does
accepting
resulting from advice he has volunteered, but it is
followed by an exception for cases such as this:
"Without affecting
his right to accept employment, a lawyer may speak publicly or write
for publication on legal topics so long as he does not emphasize his
own
professional experience or
28
to give individual advice."
bolstered his expertise or
reputation and does not undertake
There is no indication that Larry has
responded
to
individuals' questions.
Nevertheless, inasmuch as a lawyer's motivation is subjective and
often difficualt to judge, Larry should weigh how his acceptance
employment would appear to the public.
of
If it might look bad or make
him suspect, he would do well to decline.
III.
(RE: legal check-up)
Harry's implementation
he sends
periodic
of a routine office procedure whereby
letters to his former clients suggesting a "legal
check-up" is not only ethically permissible, but a 195& study of the ABA
Special Committee on the Economics of Law Practice recommended a
concerted effort to
get clients to have such checkups as a major step
29
toward improving lawyer income.
"It certainly is not improper for
a lawyer to advise his regular clients of new statutes, court decisions,
and administrative rulings, which may affect the client:'s interests,
provided the
communication is strictly limited to such information. . ..
"When such communications go to
concerns or individuals other than
regualar clients of the lawyer, they are thinly disguised advertise30
ments for professional employment, and are obviously improper."
"It is our opinion
believe that he has been
that where the lawyer has no reason to
supplanted by another lawyer, it Is not
only his right, but It might even be his duty to advise his client
of any change of fact or law which might defeat the client's testimentary
purpose as expressed in the will.
Periodic motices might be sent to
the client for whom a lawyer has drawn a will, suggesting that it
might be wise for the client to re-examine his will to determine
whether or not there has been
any chan in his
31 32
a modification of his will." '
1am
situation requiring
FOOTNOTES
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
12a.
13.
14.
15.
16.
17.
18.
.—19.
20.
21.
22.
23.
24.
25.
26.
27.
28.
29.
30.
31.
32.
ABA CPR, Canon 2.
ABA CPR, DR 2-104.
ABA CPR, EC 2-3.
In re Ades, 6 F.Supp. 467 (D. Mary 1934).
ABA Canons of Professional Ethics, Canon 28.
ABA CPR, DR 2-103 B&C.
ABA CPR, DR 2-130.
ABA CPR, EC 2-3.
ABA CPR, EC 2-5.
ABA CPR, EC 2-3.
ABA Formal Opinion 334 (August 10, 1974).
ABA CPR, DR 2-104.
United Mine Worker v. Illinois State Bar Association. 389 U.S. 217 (1967).
ABA CPR, EC 2-1
ABA CPR, EC 2-2
ABA Opinion 320 (1968).
ABA Opinion 179 (1938).
Cheatham, Availability of Legal Services: The Responsibility of the
Individual Lawyer and of the Organized Bar, 12 U.C.L.A.L.Rev. 438 (1965).
Cheathajn, The lawyer's Role and Surroundings. 25 Rcoky lft. L. Rev. 405 (1953).
Professional Responsibility: Report of the Joint Conference,
44 A.B.A.J. 1159 (1958).
ABA Opinion 307 (1962).
State v. Nichols, 151 So.2d 257,259 (Fla. 1963).
ABA CPR, EC 2-3.
ABA CPR, DR 2-101.
ABA Opinion 179 (1938).
ABA CPR, EC 2-2.
ABA CPR, EC 2-5. See also, ABA Opinion 273 (1946).
ABA CP^R, DR 2-104.
ABA Informal Opinion 1288 (June 17, 1974).
ABA Opinion 213 (1941).
ABA Opinion 210 (1941).
ABA CPR, DR 2-104 (A)(1).
13