OBA Ethics Counsel
Ethics Opinion No. 221
Adopted October 18, 1962
A committee of a trade association employs an attorney to protect or further the common interest of the combined members by appearing in behalf of the association before an administrative body. Thereafter, by letter the committee notifies the membership of the association of the attorney's successful presentation and asks the members to contribute according to their size in order to retain the further services of the attorney and to pay his accumulated bills. It further directs the members to remit directly to the attorney and closes with the following paragraph:
"Contributors are welcome to call on the committee's counsel, John Doe, for advice on problems concerning ___________. This service will be limited at the discretion of the _______________ Committee."
Does such procedure constitute an unethical practice?
It is difficult to believe that a letter of this sort addressed to the members of the association could have been prepared and transmitted without the knowledge of the attorney involved; but even if it were without his knowledge, it would require immediate remedial action upon his part to prevent the notification letter from being a violation of the canons of professional ethics.
The second paragraph of Canon 35 reads as follows:
"A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of of such an organization in respect to their individual affairs."
It is quite obvious that the last paragraph of the notification letter welcoming the contributors to call upon the lawyer for advice concerning their problems is in direct violation of this canon. The canon has been so construed upon numerous occasions by the Committee on Professional Ethics of the American Bar Association.
The method by which the association proposes to pay the attorney is likewise reprehensible. The attorney has been employed by the committee of the association and not by the individual members. His statements for services should be in relation to the value of the services which he performs and should be submitted to the committee. The committee or the association should then acquire the funds from its members or from some other source and pay the attorney directly. The procedure outlined is fraught with danger of either overpayment or underpayment; and would tend to give each individual member of the association the feeling that he, having paid the attorney directly, was entitled to call upon his services directly. This, in effect constitutes a violation of Canon 27 prohibiting the solicitation of business; and could well result in the violation of Canon 34 in the event the sums forwarded to the attorney were in excess of the value of his services and resulted in the remission by him to the association.
As indicated above, if the letter were circulated without the knowledge of the attorney involved, he should under no conditions consult with the individual members of the association in connection with their own private problems, and all sums received by him should be turned over promptly to the association without retaining any portion thereof in payment of his fees.