Opinion 19
Question Presented
Whether the proposal contained in the following letter violates one or more of the Canons of Ethics of the State Bar of Texas, to-wit:
"My experience in the automobile industry legal field in which I have specialized for the past 13 years has proven a great need for getting other attorneys in other localities better acquainted with this type of legal work. In the average city throughout Texas so few of these type cases arise locally that it gives a local attorney little or no chance to learn the 'ins' and 'outs' of this type legal business.
This same letter is going to each member of the Texas Used Car Dealers Association, Texas Association of Automobile Finance Companies and various local banks soliciting from each the information referred to on the inclosed questionnaire.
It is my plan that after I have received back this information, I will pick several attorneys in each locality to personally interview and from them pick one or more to become a member of what shall be termed 'Texas Secured Commercial Financing Legal Society.' The attorneys chosen will not pay any fees or other monetary considerations and cannot join except by invitation. Each attorney so chosen will receive up-to-date information on the legal aspects of the automobile and financing business.
If you should be involved in a lawsuit in some other city, you could call the attorney member in your city and deal directly with him as he would have the attorney member in the other city handle the case for you. There would be only the one fee which in most cases would be routine set fee, which you would pay the local attorney as he would pay the attorney representing you in the other city.
The incentive for an attorney to want to be in the society would be the automatic possibility of receiving a great deal of referral matters from other attorneys throughout the state.
Naturally this would not affect your relationship with your own local attorney even if he were not the local member of the society since he could himself and would, I believe, in most instances, want to work with attorneys specializing in this type of work in the other city where you may be legally involved.
I would therefore greatly appreciate your answering the inclosed questionnaire and return in the enclosed self-addressed and stamped envelope."
18 Baylor L. Rev. 202 (1966)
SOLICITATION - EMPLOYMENT
An attorney may not solicit professional employment by strangers who are in the same class and have interests identical with or similar to those of unsolicited clients.
SOLICITATION - EMPLOYMENT - RECIPROCAL BASIS
An attorney may not solicit employment from other attorneys on a reciprocal basis.
Canon 24. A.B.A. Canon 27.
Such letter violates Texas Canon 24 and American Bar Association Canon 27. Opinions 111 and 232 of the committee of such association are directly in point and are adopted by this committee. One member of the committee is of the opinion that such letter also violates Texas Canon 39. (9-0)
The A.B.A. opinions above referred to are as follows:
"Opinion 111
(May 10, 1934)
A member presents the following inquiry:
I should like an expression of opinion by the Committee on Ethics and Grievances on the following question: "May an attorney, who has an unsolicited client whose case requires the cooperation of others, solicit other clients, having similar interests to protect, where his motive in so doing is to protect and enforce the rights of his unsolicited client?
It is suggested that certain language in the opinion of the Supreme Court of Illinois in the case of People vs. Ashton, 347 Ill. 570, justifies an interpretation of Canon 27 which will approve the conduct above outlined. The views expressed in the syllabus are:
Where certain stockholders in a corporation voluntarily consult an attorney in regard to their claims against the corporation, it is not unprofessional conduct for the attorney to solicit other stockholders to join in the contemplated suit for the sole purpose of making the total claims sufficient to bear the actual expense of the litigation.
From earliest times, both in England and in America, solicitation of employment by lawyers has been considered beneath the essential dignity of the profession. It has not been claimed that there is anything wrong or inherently improper in such conduct. But it has been believed that it is not compatible with the self respect and best interests of the profession.
The following quotation of a colloquy between Dr. Samuel Johnson and James Boswell (Boswell's Life of Johnson, Everyman's Library, Vol. 1, p. 607-608) suggests the basis of the traditional view, viz:
Johnson: "Sir, it is wrong to stir up lawsuits, but when once it is certain that a lawsuit is to go on, there is nothing wrong in a lawyer's endeavoring that he shall have the benefit rather than another."
Boswell: "You would not solicit employment, sir, if you were a lawyer."
Johnson: "No, sir; but not because I should think it wrong, but because I should disdain it."
Since 1908 when the American Bar Association adopted its Canons of Professional Ethics various committees of local and state bar associations, and, since January 1924, this committee, have considered many questions arising out of conduct referable to Canon 27. So far as we can discover solicitation of strangers has never been approved.
Questions relating to solicitations have been considered in our Opinions 1, 4, 5, 7, 9 and 13.
Also the Committee on Professional Ethics of the New York County Lawyer's Association, which was the first to publish answers to questions involving professional ethics, has repeatedly considered such matters. In its Question and Answer Number 244, its views on circumstances quite similar to those laid in the preceding question are set forth. Its answer was clear disapproval, and reviewed its prior similar opinions.
Similarly the Committee on Professional Ethics of the Association of the Bar of the City of New York, in its answers to questions 16 and 103, touching similar situations, disapproved such conduct.
So long as the profession adheres to Canon 27 as a declaration of its views as to proper professional conduct within the field of methods properly available to lawyers in their efforts to secure professional employment, no solicitation by the lawyer, except such as is warranted by personal relations, is proper.
However, we see no valid ground to condemn the lawyer involved for accepting as clients such persons in a similar situation to that of his client, who may, without his active intervention, be persuaded by his client to employ him."
"Opinion 232
(July 12, 1941)
A lawyer practicing in Washington, D.C., states that the multiplication of governmental activities incident to the defense program has made it necessary for lawyers outside of Washington either to make professional trips to that city or to maintain connections in Washington, and that also, for the same reason, members of the District of Columbia Bar have found it necessary to personally or by correspondents attend to matters outside of Washington. Under these circumstances, the lawyer inquires as to the propriety of any member or members of the Bar in Washington communicating with members of the Bar throughout the country and proposing some convenient means and method of interchange of professional activities and thus save much in the way of time and expenses in making long and frequent trips to Washington. Implicit in the inquiry is the thought that the proposed communications be designed to bring about a reciprocal interchange of professional activities.
It is evident the proposal contemplates communications which are not based upon personal acquaintanceship between the lawyer or lawyers in Washington and the lawyer or lawyers outside of Washington. It is evident also that the communication does not contemplate sending out within the limitations of Canon 46, a card to other members of the Bar announcing the establishment of an office for the practice of a specialty. With these exclusions, it would seem to be entirely clear that the communications proposed to be sent out by the member or members of the Washington Bar to other lawyers throughout the country constitute a direct solicitation of professional employment on the basis of reciprocity. In the opinion of the committee this is a violation of Canon 27, which forbids the solicitation of professional employment by circulars or advertisements or by personal communications or interviews not warranted by personal relations. (See Opinions 1, 36, 145.)
Justification for this long-established rule is hardly necessary, and it is sufficient to note that a client retains a lawyer because he is satisfied that he will receive from the lawyer retained his undivided loyalty and his personal skill. If the matter committed to the lawyer requires the retaining of local counsel in Washington or elsewhere, that selection likewise should be made on the basis that the Washington lawyer retained will give his undivided loyalty and skill to the client, undiluted by any understanding or arrangement involving reciprocity in other matters as between himself and the correspondent lawyer."
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 19 (1949)