The Florida Bar
OPINION 77-8It is improper for an attorney to allow an heir-hunting service to advise potential heirs of his services and improper for the attorney to contact potential heirs through names provided by the heirhunting service. This would amount to both indirect and direct solicitation of clients.
October 5, 1977
October 5, 1977
Integration Rule: 11.02(5)
Cases: Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954, 956-957 (D.C. Cir., 1968) The Florida Bar v. Heller, 247 So.2d 434 (Fla. 1971)
CPR: DR 2-103(A) and (D), DR 2-102(3)(D), DR 2-104
Opinions: 73-32, 74-15; ABA Formal 173
Misc.: Wise, Legal Ethics (2nd Ed. 1970), p. 216
Chairman Lehan stated the opinion of the committee:
An heir-hunting service sends out what is essentially a form letter to persons who are heirs or potential heirs to estates which are in probate. It advises the addressee that he or she may be an heir to an estate of an approximate stated value. The service offers to disclose the name and location of the estate, to prepare a genealogical chart and to obtain records necessary to establish a claim in return for an amount equal to one-third of anything the potential heir receives from the estate. A copy of the form letter is enclosed which the addressee may sign and return, thereby agreeing to the proposal.
If the addressee accepts the offer, the heir-hunting service next sends another letter giving details about the estate. The follow-up letter also advises that a named attorney represents the service, that the service is sending to that attorney the addressee's name and address, that the attorney will then be writing to the addressee offering to represent the addressee without obligation for fee inasmuch as the attorney's fee is to be paid out of the service's one-third. That letter also advises the addressee of his right to employ his own counsel (at his own expense) and suggests that before the addressee does so he wait until he hears from the named attorney. The attorney then writes to the addressee in the manner described in the service's follow-up letter and also states to the addressee that the service, as a part of its agreement with the addressee, has retained the attorney to present to the court various genealogical documentation required to establish the addressee's relationsh ip to the deceased.
A member of The Florida Bar, who is a private practitioner and acts as general counsel for the service, asks about the ethical propriety of his participation in the arrangement.
The Committee is of the opinion that it would be unethical for the attorney to participate in the arrangement, and that to do so would violate Section 11.02 of the Integration Rule and DR 2-103.
Section 11.02(5) of the Integration Rule provides:
... the solicitation of professional employment by advertisement, runners, solicitors, investigators, or in any other manner shall constitute grounds for disciplinary action.
DR 2-103(A) prohbits an attorney from recommending his own employment to a non-lawyer who has not sought such advice; DR2-103(D) prohibits an attorney from knowingly assisting anyone who recommends, furnishes, or pays for legal services to promote the use of his services, subject to certain exceptions not applicable here.
It appears that the proposed conduct of the attorney would constitute his participation in an arrangement under which his services were solicited, with his knowledge, by the organization in violation of DR 2-103(3)(D), and that the attorney's writing to the potential heir would also violate DR2-103(A). See also Wise, Legal Ethics (2d. 1970) at page 216, where it is said that:
... a lawyer cannot solicit and therefore cannot let others solicit for him or take advantage knowingly of such solicitation.
We reach the same conclusion whether or not the participating attorney is general counsel of the heir-hunting service. Either way, the attorney is aware of what the service is doing and, in violation of DR 2-103(D), is consenting to the service's suggestion that the attorney be employed. The attorney's writing to the potential heir also amounts to soliciting employment in violation of DR 2-103(A). See also ABA Formal Opinion 173.
Because we find the arrangement violates DR 2-103, we do not need to decide in this opinion whether it would also involve the attorney in a conflict of interest. We do note that in Sullivan v. Committee on Admissions and Grievances , 395 F.2d 954, 956-957 (D.C. Cir. 1968), the court found that an attorney's participation in another, but not identical, heir-hunting proposal did create a conflict of interest.
In Opinion 73-32, the inquiry involved an heir-finding business which purchased for cash claims to escheated property and then retained attorneys to prosecute those assigned-purchased claims on a contingent fee basis. Because it lacked jurisdiction to pass on a question of law, the Committee did not decide whether laymen could legally engage in "heir-hunting" activities; for the purposes of the opinion, it assumed, arguendo, that they could.
The Committee then stated that it found no impropriety in the attorneys prosecuting those claims on a contingent fee basis for the heir-finders. That opinion expressly left open the question the court dealt with in Sullivan v. Committee on Admissions and Grievances, supra -the propriety of the heir-finders purchasing the claims on a contingency basis and in turn employing attorneys to prosecute them on a contingency basis. The opinion warned about violating DR2-103 and DR2-104.
In Opinion 74-15 [since withdrawn], the inquiry came from an attorney who was the sole stockholder in a corporation which was in the business of locating persons entitled to surplus funds from tax deed sales. Once it located such a person, the corporation, for a fee, arranged to have that person execute a proof of claim. If probate proceedings were necessary to establish entitlement to a refund, the corporation for a fee would arrange to have the attorney-stockholder do the necessary legal work and the corporation would pay the attorney.
The Committee felt that the arrangement violated DR 2-103 because it amounted to indirect solicitation, and resulted in channeling to the attorney the legal work the corporation's solicitation developed.
The same principles apply here, plus the factor that the arrangement is so structured that it also involves a direct solicitation by the attorney, in violation of DR 2-103(A) and, if the solicitation is successful, a violation of DR2-104.