Ethics Opinon 1975-14

October 1, 1975

SUBJECT: LAWYER PERMITTING HIS NAME TO BE USED TO PROMOTE PREPARATION OF WILLS TO CHURCH MEMBERS

I
QUESTION PRESENTED

An attorney is under contract with a church to prepare wills for any of its members desiring this service. The church's attorney has agreed to prepare a will for a husband and wife or for an unmarried person for $10.00 and for $15.00 if a trust is required. Does this endeavor violate any of the Rules of Professional Conduct?

II
SUMMARY

It is improper professional conduct for an attorney to permit his name to be published, either orally or in writing to a congregation as willing to draw wills, with or without a charge, for members of the congregation.

III
STATUTES AND CANONS

Rule 2 of the Rules of Professional Conduct of the State Bar of California and Canon 27 of the Canons of Professional Ethics of the American Bar Association both proscribe the solicitation of professional employment either directly or indirectly.

IV
FORMAL OPINION

The Committee on Professional Ethics and Grievances of the American Bar Association has contemplated the question of what constituted advertising or solicitation of professional legal services in violation of the proscription thereof as embraced by both Rule 2 of the Rules of Professional Conduct and Canon 27 of the Canons of Professional Ethics.

In Formal Opinion No. 179 the Committee dealt with the question " . . . is it improper to acquaint the lay public with the wisdom and desirability of employing a lawyer to prevent future trouble or controversy, and possibly costly litigation rather than waiting until one is confronted with difficulty, controversy or litigation?" The Committee responded with the following observation:

We recognize a distinction between teaching the lay public the importance of securing legal services preventive in character and the solicitation of professional employment by or for a particular lawyer. The former tends to promote the public interest and enhance the public estimation of the profession. The latter is calcu-lated to injure the public and degrade the profession.

This same opinion expresses the Committee's view on that part of Canon 27 which in part provides:

This does not permit solicitation of professional employment by circular, or advertisements, or by personal communications or interviews not warranted by personal relations. It is unprofessional to endeavor to procure professional employment through touters of any kind. Indirect advertisements for professional employment . . . offend the traditions and lower the tone of our profession and are reprehensible.

Their pronouncement, in part, reads as follows:

In carrying out a project to educate the lay public with respect to the benefits of preventive legal services, certain possible evils should be carefully guarded against.

First, it should be carried on by the organized bar in order that any semblance of personal solicitation will be avoided.

V
INFORMAL OPINION

The Standing Committee on Professional Ethics of the American Bar Association in Informal Opinion No. 571 (a), subject "Advertisement by Lawyer of Desirability of Making a Will," dealt with the following two questions:

"C, a lawyer, proposes to use on the face of his envelopes, at the bottom, the following: 'HAVE YOU MADE YOUR WILL? See your lawyer today!! This reminder is made as a public service to you and your family.'"

"Is it unethical for a state legislator and lawyer who believes that everyone should have a will to write a letter to the editor of a newspaper as a public service, urging the public to go to their lawyers and have their wills made after the same newspaper had published several articles of prominent people who had died without wills, or who had drawn up their own will?"

It was the opinion of the Committee that it would be unethical for the lawyer to do either of the two things instanced in these questions. They stated, "Where a lawyer is acting individually, notwithstanding he may feel that he is performing a public service, the invitation to have a will drawn or to see a lawyer is, in the opinion of this committee at least an indirect form of advertising and soliciting business for himself, in violation of Canon 27. Advertising of this sort should be conducted by bar associations, without particular reference to any individual lawyer."

Although not directly on the issue at hand, the Standing Committee on Professional Ethics in Informal Decision No. C687, subject "Lawyers Acting on Bequest Committees of Churches" expressed the following view:

"It would be improper for a lawyer to be a member of a committee which has a program designed to encourage every church member who owns property to write a will. While lawyers are pleased to see such programs adopted and carried out by laymen, lawyers cannot participate in such a program. To serve on a committee which has such a program would be to participate. Only through Bar Associations can lawyers have a part in such an education program. A lawyer should not serve in an official advisory capacity to such a committee. He can through Bar Associations procure and make available material on the advisability of persons having wills. He can also suggest sources, such as trust companies, for obtaining literature on the subject . . . . A true attorney and client relationship must always be established between the attorney and the maker of the will."

VI
ANALYSIS

The Disciplinary Rules of the American Bar Association's Canons of Professional Ethics leave no room for doubt or uncertainty on the question of the propriety of an attorney permitting his name to be used to promote any cause irrespective of how well motivated when in the final analysis the underlying inducement is, or can be construed to be, to obtain personal benefit or to secure personal publicity. Rule 2-101, entitled "Publicity in General," paragraph (B) states, "A lawyer shall not publicize himself . . . nor shall he authorize or permit others to do so in his behalf." Paragraph (C) of Disciplinary Rule 2-103 establishes the confines within which attorneys must operate with regard to promoting the use of his services. Said Rule clearly prohibits lawyers from promoting the use of their services by way of persons or organizations except in certain tightly controlled situations.

Recognizing the vital need to advance the practice of teaching the lay person the benefits and advantages of preventive legal services which surely the preparation of a will might be, such activities are best performed by or through the Bar Association. In this way we might first preserve that highly desirable aspect of freedom in selecting legal representation and, secondly, might avoid the apparent suggestion that the attorney is promoting his own self-interest and not that of the general public.

On this issue of distinguishing between educating the public and soliciting professional employment the Committee on Professional Ethics and Grievances of the American Bar Association expressed itself in the first aforecited comment from Formal Opinion No. 179.

We feel further compelled to comment on the matter of the fee arrangement in the instant case. We find the indicated arrangement untenable and grossly lacking in professional ethics.

From the A.B.A. Opinion No. 250 we cite, "Ours is a learned profession, not a mere money-getting trade . . ." Many factors should and must be considered in arriving at the fee that a lawyer should charge his client and this wholesale approach to legal fees does irreparable damage to the desired image of our profession and should be cause for censure.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

EDITOR'S NOTE: State Bar Rule 2 is now found in Rules 2-101 through 2-104.


 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.