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OBA Ethics Counsel

Ethics Opinion No. 125

Adopted October 23, 1936

The Board is in receipt of the following request for an advisory opinion:

"Is it proper for a member of the bar, who sees a suit filed in the office of the court clerk, and before the summons is served, to secure and send a copy of the petition to the defendant, advising the defendant of the filing of the suit, and informing the defendant that if he (the member of the bar) can be of any service to feel free to call upon him?"

"Is it proper where a member of the bar who is the local attorney has not been employed as local counsel, who sees a suit filed in office of court clerk, and before summons is served, to take a copy of petition, where the defendant is a corporation maintaining its own legal staff and mail the petition to the legal staff of such corporation informing it of the suit and advising that if he can be of any service, to feel free to call upon him?"

In response:

Assuming that no relationship, business or otherwise, exists between the member of the bar and the defendant, the response to the first inquiry must necessarily be in the negative. Such conduct is interdicted by Rule 29 of the rules of professional conduct of the State Bar as a solicitation of business, and would accordingly subject the offending member to disciplinary action.

Assuming that "local attorney" refers to a member of the bar who has some connection with the defendant, the response to the second inquiry depends largely upon the nature of the relationship between them.

If the local attorney is on a general retainer he is not subject to criticism in the premises, because, as contemplated by Rule 29, the personal relationship would warrant his conduct as a courtesy of a member of the bar to a client.

If he is not on a general retainer and occasionally only is employed by the defendant, his conduct in obtaining a copy of the petition and forwarding it to the defendant is disapproved of as constituting an implied solicitation of business which is interdicted by Rule 29. His conduct in the premises is aggravated, of course, by the express solicitation.