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OBA Ethics Counsel

Ethics Opinion No. 181

Adopted June 15, 1955

FACTS

An insurance salesman contacts a prospective customer for the purpose of selling him insurance for investment or estate purposes. The insurance salesman informs the customer that he will have an attorney examine his will and confer with him concerning his property, and the attorney will check the legality of his will and advise him what to do with reference to assuring his estate the greatest tax savings. The insurance salesman then introduces the attorney to his customer, and the attorney and the customer agree upon a fee charge. The attorney examines the customer's will and procures information concerning his property and holdings, and renders a written opinion and charges him for same. Frequently the customer has a regular attorney and often an attorney paid on a retainer basis, but he is not consulted in this instance. In many instances, the attorney introduced is not known by the customer nor does the attorney know the "new client" except by reputation. At least the attorney has never represented the "new client" previous to this time.

ANSWER

This is a direct violation of our Canons of Professional Ethics.

OPINION

The answer to this question is so obvious and elementary that it seems any attorney would know he is violating the Canons of Ethics under such a system. The insurance salesman in this instance is nothing more than a touter. The insurance salesman, interested in selling insurance, uses the lawyer for the purpose of determining the estimated total death taxes against the customer's estate. Thereafter the salesman attempts to sell insurance to provide funds for payment thereof. The insurance salesman in the instance cited above does not seem interested in seeing that his prospective customer is served by his own attorney, but he recommends the attorney with whom he has this working arrangement. This may not be a violation of the standards for insurance salesmen, but it is clearly a violation of the Canons of Professional Ethics.

Canon 27 reads in part as follows:

"It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. ..."

It is not important that the attorney does not pay the insurance salesman for procuring him business. One can be a touter without receiving direct payments.

In Opinion 147 of the American Bar Association it was stated that it was unethical and professionally improper for an attorney to employ touters of any kind for the purpose of obtaining professional employment. It was further stated in this opinion a fact which all lawyers know or should know. "It is disreputable to employ agents or runners or to pay or reward, directly or indirectly, those who bring or influence the bringing of cases to his office, .... A duty to the public and to the profession devolves upon every member of the Bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof to the end that the offender be disbarred." This quotation is virtually taken from Canon 28 of our Professional Ethics.

Oklahoma lawyers have frequently been disciplined and disbarred for soliciting business by direct or indirect means, and lawyers who fall within the purview of the question propounded in this instance certainly are subjecting themselves to disciplinary action.