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OBA Ethics Counsel

Ethics Opinion No. 61

Adopted October 27, 1933

The Board is in receipt of the following inquiry:

"'A', a member of the State Bar, is appointed by a Justice of the Peace to defend and represent, at a preliminary hearing, a defendant charged with a public offense. Said attorney waives preliminary hearing, and subsequently thereafter defendant requests an interview with 'B', also a member of the State Bar. At the time 'B' interviews defendant he is informed that defendant doesn't care to have 'A' represent him, and insists that 'B' act as his attorney. 'B' learns that defendant has already been arraigned in the District Court and that the court records do not show either an appointment by the court or an attorney of record. 'B' then secures an order appointing him to represent the defendant in the District Court. At this time I may state that 'B' learns from the District Court that an appointment by the Justice of the Peace is invalid. Question: Is it necessary for 'B' to communicate with 'A' before perfecting appointment in the District Court? Has 'B' breached, or violated any rule of legal ethics? Has 'B' acted properly in securing the employment? Will you also inform the writer whether it is proper for a client to recommend his attorney to another person incarcerated in jail and not represented by counsel? Is it proper for a client to inform his attorney that an accused person desires to talk to him?"

In response:

Rule 9 of the Rules of Professional Conduct lays down the rule that "efforts, direct or indirect, in any way to encroach upon the business of another lawyer, are unworthy of those who shall be brothers at the bar." From the statement of facts it appears that the defendant solicited the representation of him by 'B' and that 'B' was not the instigator in the change of attorneys. It does not appear that 'B' has breached any of the Rules of Professional Conduct. It would appear that the defendant is entitled to be represented by an attorney of his own choosing. It is not improper for a client to recommend his attorney to any person incarcerated in jail and not represented by counsel; nor for a client to inform his attorneys that an accused desires to talk to him; provided always that neither is done at the solicitation of the attorney. If it is done at the solicitation of the attorney, Rule 29 of the Rules of Professional Conduct would be violated. This rule interdicts "the securing of business by indirection through touters of any kind."