Can a lawyer accept referrals from an heir-hunting service or represent both the service and the heir in the same probate matter?

Plain-English summary

The Disciplinary Procedures Committee asked the Professional Ethics Committee to address bar members accepting representation of persons referred by heir location services: whether the service's solicitation of heirs was improper (requiring members to decline referrals), who the client was, and how conflicts had to be identified and disclosed. The committee framed the question around an heir-hunting service that sought to represent heirs in a pending probate before the personal representative contacted them about their beneficiary status.

The committee had earlier opined that lawyers representing heir-finders with purchased claims could prosecute those claims on a contingent fee basis (Opinion 73-32), but had not addressed representing a referred heir or jointly representing the service and an heir. Applying Rule 4-7.4(a), the committee noted that an attorney's agent is subject to the same solicitation restrictions as the attorney, and that Rule 4-8.4(a) bars violating the rules through the acts of another. If the methods an heir-hunting service used to contact prospective heirs did not comply with the solicitation and advertising rules, an attorney could not accept referrals from that source.

On the client-identity and conflict questions, the committee adopted the reasoning of Sullivan v. Committee on Admissions and Grievances, which found that representing an heir while already committed to the heir-finder created an actual, present conflict of interest, against a background of an inherently champertous undertaking and forbidden solicitation. The committee concluded that representation of heirs referred by heir-hunting services, and joint representation of heirs and an heir-finder, was prohibited under the advertising rules and Rules 4-7.4, 4-1.7(a), and 4-8.4(a), and that the scheme also implicated the rules barring fee-splitting with nonlawyers and assisting the unauthorized practice of law (Rules 4-5.4(a) and (d) and 4-5.5(b)). Representing heir-finders alone remained governed by Opinion 73-32, and the committee did not address heir-hunting in the abandoned-property/escheat context.

Currency note

This opinion was issued in 1997, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer accept a client referred by an heir-hunting service?

A: Under this opinion, not where the service's methods of contacting prospective heirs did not comply with the solicitation and advertising rules; the committee concluded such referrals were prohibited and that an agent's solicitation is treated as the lawyer's own.

Q: Could the lawyer represent both the heir-hunting service and the heir?

A: No. Following Sullivan, the committee concluded that representing the heir while already committed to the heir-finder created an actual, present conflict under Rule 4-1.7(a), so joint representation was prohibited.

Q: Did the opinion bar representing an heir-finder at all?

A: No. The committee left in place Opinion 73-32, under which lawyers could represent heir-finders with purchased claims on a contingent fee basis; the prohibition addressed referrals of heirs and joint representation.

Background and rules framework

The opinion applied the Florida solicitation rule then numbered 4-7.4(a) (comparable to Model Rule 7.3) and Rule 4-8.4(a) (Model Rule 8.4, violating the rules through another), together with Rule 4-1.7(a) (concurrent conflicts, Model Rule 1.7), Rule 4-5.4(a) and (d) (fee-splitting with and control by nonlawyers, Model Rule 5.4), and Rule 4-5.5(b) (assisting unauthorized practice, Model Rule 5.5).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.3 / Fla. Rule 4-7.4(a) (solicitation) [the opinion notes current Rule 4-7.18(a)]
• Model Rule 8.4 / Fla. Rule 4-8.4(a) (violating the rules through another)
• Model Rule 1.7 / Fla. Rule 4-1.7(a) (concurrent conflicts)
• Model Rule 5.4 / Fla. Rule 4-5.4(a), (d) (fee-splitting with and control by nonlawyers)
• Model Rule 5.5 / Fla. Rule 4-5.5(b) (assisting unauthorized practice)

Cases:

• Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968), conflict and champerty in heir-finder representation

Other opinions cited:

• Fla. Ethics Ops. 73-32, 74-15 (withdrawn), 77-8, 92-3

See also

• FL Bar Ethics Op. 02-8: Referral Fees and Ancillary Business
• FL Bar Ethics Op. 02-1: Nonlawyer Hourly Bonuses
• FL Bar Ethics Op. 97-2: Attorney as Closing Agent

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-97-3/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-97-3-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 97-3
September 5, 1997
Advisory ethics opinions are not binding.
An attorney may not accept referrals from an heir hunting service nor represent an heir
hunting service and an heir jointly in matters in which the service seeks to represent heirs in a
pending probate matter prior to the heirs being contacted by the personal representative of the
estate to notify them of their status as beneficiaries.
RPC: 4-1.7(a), 4-5.4(a) & (d), 4-5.5(b), 4-7.4(a) [See current 4-7.18(a)], 4-8.4(a)
Opinions: 73-32, 74-15, 77-8, 92-3
Case: Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir.
1968)
The Committee has been asked by the Disciplinary Procedures Committee (“DPC”) to
respond to questions regarding members of the bar accepting representation of persons referred
by heir location services. The specific questions are as follows:
1) whether the heir location service’s solicitation of heirs is improper solicitation,
thereby requiring bar members to decline referrals;
2) clarifying the identity of the client;
3) identification of potential and actual conflicts of interest and when and how
same must be disclosed.
The Committee has previously opined that, if it is otherwise permitted by law, “lawyers
representing heir-finders with purchased claims may properly prosecute such claims for the heir-
finders on a contingent fee basis.” Florida Ethics Opinion 73-32. The Committee did not
address: (1) representation of an heir referred by an heir location service; (2) simultaneous
representation of an heir location service and an heir; nor (3) representation “if such claims were
purchased on a contingency basis by the heir finders who in turn employed counsel on a
contingent fee basis.” Id. These issues are before the Committee now. This opinion will
address these questions in the context of an heir hunting service in which the service seeks to
represent heirs in a pending probate matter prior to the heirs being contacted by the personal
representative of the estate to notify them of their status as beneficiaries.
An attorney’s agent is subject to the same ethical restrictions on solicitation as the
attorney. See Florida Ethics Opinions 77-8, 74-15 [since withdrawn], and 92-3. Rule 4-7.4(a)
provides the following:
A lawyer shall not solicit professional employment from a prospective client with
whom the lawyer has no family or prior professional relationship, in person or
otherwise, when a significant motive for the lawyer’s doing so is the lawyer’s
pecuniary gain. A lawyer shall not permit employees or agents of the lawyer to
solicit in the lawyer’s behalf. A lawyer shall not enter into an agreement for,
charge, or collect a fee for professional employment obtained in violation of this
rule. The term “solicit” includes contact in person, by telephone, telegraph, or
facsimile, or by other communication directed to a specific recipient and includes
any written form of communication directed to a specific recipient and not
meeting the requirements of subdivision (b) of this rule. [Emphasis added.]
Rule 4-8.4(a) provides similar guidance:
A lawyer shall not:
(a) violate or attempt to violate the Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another;
Additionally, Rule 4-7.8 prohibits an attorney from accepting referrals from a lawyer
referral service unless solicitation by the service is in compliance with the ethics rules. If the
methods employed by heir hunting services to contact prospective heirs do not comply with the
rules regulating attorney solicitation and advertising, an attorney would be prohibited from
accepting referrals from such a source.
The DPC’s concerns regarding the identity of the client and potential and actual conflicts
of interest can be answered by reference to Sullivan v. Committee on Admissions and
Grievances, 395 F.2d 954 (D.C. Cir. 1968), in which the court found that such representation
presents a conflict of interest, among other ethical considerations. The court found the following
problems arose:
The record abundantly supports the view of the District Court panel of judges:
The case arises against a background of an inherently champertous undertaking
by the Association; the solicitation thereafter by the Association of a lawyer-client
relationship between the heirs and a lawyer of the Association’s choice is plainly
forbidden solicitation of professional work. It is equally clear that an undertaking
of representation of the heir, by a lawyer already committed to represent the
interests of the “heir finder” creates not a potential but an actual and present
conflict of interest. Among other things, the first obligation of a lawyer acting
truly and wholly in the interests of the heir might well be to advise his heir-client
(a) that the contingent fee contract between the “heir finder” and the heir was
void; (b) that he, the lawyer, already represented and owed primary duties to the
“heir finder”; (c) that in all but rare instances where a contest over heirship
existed, the heirs might not need either a lawyer or the Archives Association, and
that a contingent fee might be inappropriate; (d) that at most the services of a
lawyer, barring a challenge to the heir’s rights, would be minimal and that
representation should be for a fee measured by the time necessarily devoted to
collection of heir’s claims. . . . These propositions are so clear and plain that it is
difficult to see why lawyers needed to await the action of the Committee on
Admissions and Grievances and the decision of the District Court.
The Committee agrees with and adopts the opinion of the court. Such a referral scheme
also implicates the rules prohibiting fee splitting with nonlawyers and assisting in the
unauthorized practice of law. See Rules 4-5.4(a) & (d) and 4-5.5(b), Rules Regulating the
Florida Bar. Therefore, the Committee concludes that representation of: (1) heirs referred by heir
hunting services; and (2) heirs and an heir finder jointly is prohibited under the rules regulating
attorney advertising and the Rules of Professional Conduct as discussed above. See Rules 4-7.4,
4-1.7(a), and 4-8.4(a), Rules Regulating the Florida Bar. Concerning representing heir finders
alone, see Florida Opinion 73-32. The Committee does not address the situation presented by
nor express an opinion regarding referrals to attorneys by heir hunting services in the abandoned
property context, in which heir hunters find heirs to property which will be escheated to the state.