The Florida Bar
March 15, 1974
March 15, 1974
A lawyer who represents heir-finders must inform them if he is of the opinion that heir-finding is unlawful. The lawyer may continue the representation of his client so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position.
Note: See The Florida Bar v. Heller, 247 So.2d 434 (Fla. 1971).
CPR: DR 2-103, 2-104; EC 7-3, 7-5
Case: Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968)
Vice Chairman Daniels stated the opinion of the committee:
Inquiry is made as to certain ethical considerations involved when lawyers represent laymen engaged in the business of “heir-finding.” These laymen search public records and determine that certain persons may have valid claims to escheated property, purchase such claims for cash, and then retain counsel to prosecute the assigned-purchased claims on a contingent fee basis.
A threshold question exists — whether such laymen may lawfully engage in such activities — which this Committee lacks jurisdiction to answer. If, in fact, it is ultimately determined that such lay activity is unlawful, then, and in that event, lawyers representing heir-finders would be ethically obligated to so advise their clients. Moreover, even in the absence of any authoritative decision, if the lawyer is of the opinion that heir-finding by laymen is unlawful, he should disclose such opinion to his client. As stated in EC 7-3:
. . . In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.
If the client refuses to accept the lawyer's opinion as to the unlawfulness, the lawyer's conduct should then be governed by EC 7-5, which provides:
A lawyer as adviser furthers the interest of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision. He may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.
Assuming arguendo that heir-finding by laymen is a lawful activity, lawyers representing heir-finders with purchased claims may properly prosecute such claims for the heir-finders on a contingent fee basis. Since the inquiries state that such claims are purchased from the heirs for cash, no questions are presented as to what ethical questions would arise if such claims were purchased on a contingency basis by the heir-finders who in turn employed counsel on a contingent fee basis. Cf., Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968).
However, even if the lay heir-finders' activities are lawful, legal representation of such finders is fraught with ethical peril. If the heir-finder seeks legal advice before purchasing claims, the lawyer may well get involved in the direct or indirect solicitation of claims through a lay intermediary. In any such situation, the lawyer should be extremely careful to avoid any violation of DR 2-103 or DR 2-104.