Opinion 97-3
FLORIDA BAR ETHICS OPINION OPINION 97-3 September 5, 1997 Advisory ethics opinions are not binding. An attorney may not accept referrals from an heir hunting service nor represent an heir hunting service and an heir jointly in matters in which the service seeks to represent heirs in a pending probate matter prior to the heirs being contacted by the personal representative of the estate to notify them of their status as beneficiaries. RPC: Opinions: Case: 4-1.7(a), 4-5.4(a) & (d), 4-5.5(b), 4-7.4(a) [See current 4-7.18(a)], 4-8.4(a) 73-32, 74-15, 77-8, 92-3 Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968) The Committee has been asked by the Disciplinary Procedures Committee (“DPC”) to respond to questions regarding members of the bar accepting representation of persons referred by heir location services. The specific questions are as follows: 1) whether the heir location service’s solicitation of heirs is improper solicitation, thereby requiring bar members to decline referrals; 2) clarifying the identity of the client; 3) identification of potential and actual conflicts of interest and when and how same must be disclosed. The Committee has previously opined that, if it is otherwise permitted by law, “lawyers representing heir-finders with purchased claims may properly prosecute such claims for the heirfinders on a contingent fee basis.” Florida Ethics Opinion 73-32. The Committee did not address: (1) representation of an heir referred by an heir location service; (2) simultaneous representation of an heir location service and an heir; nor (3) representation “if such claims were purchased on a contingency basis by the heir finders who in turn employed counsel on a contingent fee basis.” Id. These issues are before the Committee now. This opinion will address these questions in the context of an heir hunting service in which the service seeks to represent heirs in a pending probate matter prior to the heirs being contacted by the personal representative of the estate to notify them of their status as beneficiaries. An attorney’s agent is subject to the same ethical restrictions on solicitation as the attorney. See Florida Ethics Opinions 77-8, 74-15 [since withdrawn], and 92-3. Rule 4-7.4(a) provides the following: A lawyer shall not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship, in person or otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to solicit in the lawyer’s behalf. A lawyer shall not enter into an agreement for, charge, or collect a fee for professional employment obtained in violation of this rule. The term “solicit” includes contact in person, by telephone, telegraph, or facsimile, or by other communication directed to a specific recipient and includes any written form of communication directed to a specific recipient and not meeting the requirements of subdivision (b) of this rule. [Emphasis added.] Rule 4-8.4(a) provides similar guidance: A lawyer shall not: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; Additionally, Rule 4-7.8 prohibits an attorney from accepting referrals from a lawyer referral service unless solicitation by the service is in compliance with the ethics rules. If the methods employed by heir hunting services to contact prospective heirs do not comply with the rules regulating attorney solicitation and advertising, an attorney would be prohibited from accepting referrals from such a source. The DPC’s concerns regarding the identity of the client and potential and actual conflicts of interest can be answered by reference to Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968), in which the court found that such representation presents a conflict of interest, among other ethical considerations. The court found the following problems arose: The record abundantly supports the view of the District Court panel of judges: The case arises against a background of an inherently champertous undertaking by the Association; the solicitation thereafter by the Association of a lawyer-client relationship between the heirs and a lawyer of the Association’s choice is plainly forbidden solicitation of professional work. It is equally clear that an undertaking of representation of the heir, by a lawyer already committed to represent the interests of the “heir finder” creates not a potential but an actual and present conflict of interest. Among other things, the first obligation of a lawyer acting truly and wholly in the interests of the heir might well be to advise his heir-client (a) that the contingent fee contract between the “heir finder” and the heir was void; (b) that he, the lawyer, already represented and owed primary duties to the “heir finder”; (c) that in all but rare instances where a contest over heirship existed, the heirs might not need either a lawyer or the Archives Association, and that a contingent fee might be inappropriate; (d) that at most the services of a lawyer, barring a challenge to the heir’s rights, would be minimal and that representation should be for a fee measured by the time necessarily devoted to collection of heir’s claims. . . . These propositions are so clear and plain that it is difficult to see why lawyers needed to await the action of the Committee on Admissions and Grievances and the decision of the District Court. The Committee agrees with and adopts the opinion of the court. Such a referral scheme also implicates the rules prohibiting fee splitting with nonlawyers and assisting in the unauthorized practice of law. See Rules 4-5.4(a) & (d) and 4-5.5(b), Rules Regulating the Florida Bar. Therefore, the Committee concludes that representation of: (1) heirs referred by heir hunting services; and (2) heirs and an heir finder jointly is prohibited under the rules regulating attorney advertising and the Rules of Professional Conduct as discussed above. See Rules 4-7.4, 4-1.7(a), and 4-8.4(a), Rules Regulating the Florida Bar. Concerning representing heir finders alone, see Florida Opinion 73-32. The Committee does not address the situation presented by nor express an opinion regarding referrals to attorneys by heir hunting services in the abandoned property context, in which heir hunters find heirs to property which will be escheated to the state.