OBA Ethics Counsel
Ethics Opinion No. 250
Adopted May 11, 1967
This Committee has been requested to render an opinion as to whether or not an attorney may allow a special investigator to use an identification card, commonly called a business card, which contains substantially the following information: the attorney's name and the designation, "attorney at law" in the upper right hand corner, the post office box and city of the attorney in the upper left hand corner, the center of the card containing the name of the special investigator and a designation, "special investigator", the lower left and the lower right hand side of the card containing phone numbers of the special investigator and the attorney.
1. ADVERTISING--Canon 27 provides in part that it is unprofessional to solicit professional employment by circulars, advertisement, through touters or by personal communication or interviews not warranted by personal relations.
2. DIVISION OF FEES--Canon 34 provides that no division of fees for legal services is proper except with another lawyer based upon a division of services or responsibility. We believe that it is ethically possible for a law firm to employ on a full-time basis an investigator, so long as his compensation or remuneration is on a salary basis without reference to the fees received by the attorney for the work performed for his legal services, but it must be specifically pointed out that the firm would, as the investigator's principal, be accountable for any and all of his actions and conduct, including those involving the following canons, as set forth in Informal Decision No. 909, of the American Bar Association's Standing Committee on Professional Ethics, in response to a similar inquiry:
The greatest risk is a possible clear violation of Canon 27 or of Canon 28, prohibiting all forms of advertising and solicitation. If the investigator in any way advertised or praised the abilities of or solicited business for the firm, there would be a clear violation of Canon 27 for which the firm probably would be held responsible. If an investigator were to appear at an accident scene or seek to interview any of those involved or any witnesses prior to the time the firm had been actually retained in connection with the matter, the apparent violation would be almost impossible for the firm to disprove. The dangers of the appearance of solicitation and advertising would be increased tremendously by the possession by the investigator of a card showing the firm name or address or telephone number.
Obviously, the investigator, not being a lawyer, could not advise witnesses or parties as to their legal rights, and if he did he would be engaged in the unauthorized practice of law and the law firm would be guilty of an apparent violation of Canon 47, since it put him into a position to do so--or made it possible for him to do so.
If the party adverse to the firm's client is represented by counsel, any communication by the firm's investigator with the adverse party would seem to constitute a clear violation by the firm of Canon 9, which forbids such communications with parties represented by counsel.
The investigator, as the agent of the law firm, could not, without bringing the firm's ethics into question, do anything which a member of the law firm could not do ethically. Canon 15, relating to how far a lawyer may go in supporting his client's cause, Canon 16, requiring a lawyer to use his best efforts to restrain and prevent his clients from doing things which the lawyer himself ought not to do, Canon 18, requiring a lawyer to treat adverse witnesses and suitors with fairness and due consideration, Canon 22, constraining a lawyer to deal candidly with the facts in taking statements of witnesses and in drawing affidavits and other documents, Canon 28, relating to stirring up litigation or soliciting cases, Canon 29, requiring the upholding of the honor and dignity of the profession in all respects and at all times, and Canon 32, stating the lawyer's duty in the last analysis, are also among those involved. Violation of any ethical principle by the investigator would, we believe, justify a charge of unethical conduct against the law firm which employed him. Practically speaking the firm would have the burden of refuting the charge.
While the employment by a law firm of an investigator is not in itself unethical in our opinion, it is our further opinion that the law firm which does so assumes full responsibility for any act or conduct by the investigator which would be unethical if done by a lawyer.
As to the precise question of the card carried by the investigator, we have concluded that proper possession and use by a law firm's investigator of a business card is ethically permissible. Our reasoning is that if a law firm may ethically employ an investigator, in the first instance, it is permissible and, in some instances at least, desirable that he identify himself.
Doing so by presenting such a card is, to our minds, not really different in principle from his doing so orally. It is true, of course, that the card is a physical article and that the possibilities of its improper use or effect are far greater than in the case of an oral identification. For that reason, it would be improper for the investigator to display the card other than to persons he interviews in connection with a case in which the firm previously has been retained, and that he should leave the card with or for a person only when there is an affirmative and legitimate purpose for doing so. If the cards started turning up in any appreciable numbers or in suspicious circumstances in the hands of potential clients or claimants, there would be obvious cause for justified suspicion of unethical conduct on the firm's part.
In any case, all of the admonitions and principles discussed above would be applicable. While all of them are of critical importance, we desire to emphasize that an investigator employed by a law firm must not be permitted to "investigate" in any manner any accident or other matter in connection with which the firm has not previously been actually employed, and that the firm must bear the burden of avoiding even the slightest appearance of solicitation by the investigator of clients or matters for the firm. His very appearance at the scene of an accident would seem to us to make it almost impossible to refute a charge of "chasing".
This Committee adopts as its opinion those portions of the American Bar Association's Standing Committee on Professional Ethics, Informal Opinion 909, as set forth in this opinion.