May a lawyer for an asset-search business alert the owners of unclaimed funds and sign them to contingency contracts that pay the business a percentage of any recovery?

Plain-English summary

The inquiry came from an attorney who represented a business that conducts investigations and, in the course of that work, learns of unclaimed funds. The question was whether the attorney could, on the investigator's behalf, alert the alleged owners of those funds, invite them to sign a contract paying the investigator a percentage of any collections on a contingency basis, and prepare the required documents at the investigator's expense.

The Committee found the proposed representation similar to ABA Opinion 173 (1937), which held it improper for an attorney to search for unknown heirs and solicit employment from them. That the solicitation here was on behalf of the lawyer's client, the investigator, provided no distinction. The Committee concluded that the conduct proposed would be a breach of DR 2-103.

Currency note

This opinion was issued in 1973, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It applied DR 2-103 under a pre-Bates solicitation regime; the rules on solicitation changed substantially after Bates v. State Bar of Arizona (1977) and later First Amendment decisions, and are now found in RPC 7.3, with the lay-intermediary concern addressed by RPC 5.4. Treat this page as historical context, not current guidance.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: Can a lawyer contact owners of unclaimed funds to sign them up for an asset-search firm?

A: Under this opinion, no. The Committee found it improper solicitation in breach of DR 2-103.

Q: Did it matter that the lawyer was acting for the investigator, not himself?

A: No. The Committee held that soliciting on behalf of the client provided no distinction from soliciting for the lawyer directly.

Background and rules framework

The opinion applied DR 2-103 (solicitation of professional employment) and the principle of ABA Opinion 173 barring solicitation of unknown heirs. In current New Jersey terms, the solicitation question is governed by RPC 7.3, and the lawyer's relationship with the lay asset-search business by RPC 5.4.

Citations and references

Rules of Professional Conduct:

• DR 2-103 (solicitation), as in effect 1973; now MR 7.3 / NJ RPC 7.3, with the lay-intermediary concern under MR 5.4 / NJ RPC 5.4

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 173 (1937) (soliciting unknown heirs)

See also

• NJ ACPE Op. 284: Serving Tenants Through a For-Profit Corporation
• NJ ACPE Op. 279: A Disbarred Partner, the Firm Name, and Referred Cases

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp274-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

96 N.J.L.J. 1437, December 20, 1973

OPINION 274

Soliciting Escheat Claimants

This inquiry is from an attorney who represents a business that conducts investigations. During the course of such business the client learns of unclaimed funds likely to escheat. The question is whether or not it would be proper for the attorney: to represent the investigator by alerting the alleged owners of these funds, inviting them to sign a contract to pay the investigator a percentage of any collections on a contingency basis, and to prepare the required documents at the investigator's expense.

The proposed representation is similar to the situation described in A.B.A. Comm. on Professional Ethics and Grievances, Opinion 173 (1937). It was there held improper for an attorney to search for unknown heirs and solicit employment from them. See, also, Wise, Legal Ethics 138 (2d ed. 1970), Drinker, Legal Ethics 65 (1961). The solicitation on behalf of the client provides no distinction. The conduct proposed would be a breach of DR 2-103.