May a lawyer take estate work from clients steered to him by an insurance salesman who uses the lawyer's opinion to sell insurance?

Plain-English summary

The facts described an insurance salesman who, to sell insurance for investment or estate purposes, told a prospective customer that an attorney would examine his will, confer about his property, check the will's legality, and advise on assuring the estate the greatest tax savings. The salesman then introduced an attorney with whom he had a working arrangement; the attorney and customer agreed on a fee, the attorney examined the will, gathered property information, and rendered a written opinion for a charge. Often the customer had his own attorney, sometimes on retainer, who was not consulted, and frequently the introduced attorney and customer knew each other only by reputation.

The committee said this is a direct violation of the Canons. The insurance salesman is nothing more than a touter: interested in selling insurance, he uses the lawyer to estimate the estate's death taxes and then sells insurance to fund them, and he recommends the attorney with whom he has the arrangement rather than seeing the customer served by his own attorney. The committee quoted Canon 27, which makes it unprofessional to solicit professional employment through touters or by personal communications not warranted by personal relations, and stressed that it is not important that the attorney does not pay the salesman, because one can be a touter without receiving direct payments. It cited ABA Opinion 147, that it is unethical to employ touters of any kind, that it is disreputable to employ runners or to reward, directly or indirectly, those who influence the bringing of cases, and that members of the bar with knowledge of such practices have a duty to report them, language the committee said is virtually taken from Canon 28. It observed that Oklahoma lawyers have frequently been disciplined and disbarred for soliciting business by direct or indirect means.

Currency note

This opinion was issued in 1955, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rules on solicitation, runners, and channeling of business are stated and applied differently today (for example Rules 7.2 and 7.3), and constitutional limits on solicitation restrictions have developed since 1955. 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 the attorney accept estate work funneled to him by the insurance salesman?

A: No. The committee said the arrangement is a direct violation of the Canons because the salesman acts as a touter soliciting employment for the lawyer.

Q: Did it matter that the lawyer paid the salesman nothing?

A: No. The committee said it is not important that the attorney does not pay the salesman, because one can be a touter without receiving direct payments.

Q: What about the customer's own retained attorney?

A: The committee noted the salesman recommended his arranged attorney rather than seeing the customer served by his own attorney, who was not consulted, as part of why the practice was improper.

Background and rules framework

The opinion applied Canon 27 (soliciting employment through touters) and Canon 28 (employing runners or rewarding those who bring cases, and the duty to report such practices) of the Canons of Professional Ethics, adopted in Oklahoma, drawing on ABA Opinion 147. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 27 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): it is unprofessional to solicit professional employment through touters or by personal communications not warranted by personal relations.
• Canon 28 (employing runners, rewarding those who bring or influence cases, and the duty to report such practices).

Other opinions cited:

• ABA Committee on Professional Ethics, Opinion 147 (employing touters of any kind is unethical)

See also

• Okla. Bar Ethics Op. 174: Mailing a tax leaflet to clients
• Okla. Bar Ethics Op. 165: Lawyer advertising a side business from the law office
• Okla. Bar Ethics Op. 180: Professional cards in a newspaper directory

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-181/

Original opinion text

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

Adopted June 15, 1955

FACTS

An insurance salesman contacts a prospective customer for the purpose of selling him insurance for investment or estate purposes. The insurance salesman informs the customer that he will have an attorney examine his will and confer with him concerning his property, and the attorney will check the legality of his will and advise him what to do with reference to assuring his estate the greatest tax savings. The insurance salesman then introduces the attorney to his customer, and the attorney and the customer agree upon a fee charge. The attorney examines the customer’s will and procures information concerning his property and holdings, and renders a written opinion and charges him for same. Frequently the customer has a regular attorney and often an attorney paid on a retainer basis, but he is not consulted in this instance. In many instances, the attorney introduced is not known by the customer nor does the attorney know the “new client” except by reputation. At least the attorney has never represented the “new client” previous to this time.

ANSWER

This is a direct violation of our Canons of Professional Ethics.

OPINION

The answer to this question is so obvious and elementary that it seems any attorney would know he is violating the Canons of Ethics under such a system. The insurance salesman in this instance is nothing more than a touter. The insurance salesman, interested in selling insurance, uses the lawyer for the purpose of determining the estimated total death taxes against the customer’s estate. Thereafter the salesman attempts to sell insurance to provide funds for payment thereof. The insurance salesman in the instance cited above does not seem interested in seeing that his prospective customer is served by his own attorney, but he recommends the attorney with whom he has this working arrangement. This may not be a violation of the standards for insurance salesmen, but it is clearly a violation of the Canons of Professional Ethics.

Canon 27 reads in part as follows:

“It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. …”

It is not important that the attorney does not pay the insurance salesman for procuring him business. One can be a touter without receiving direct payments.

In Opinion 147 of the American Bar Association it was stated that it was unethical and professionally improper for an attorney to employ touters of any kind for the purpose of obtaining professional employment. It was further stated in this opinion a fact which all lawyers know or should know. “It is disreputable to employ agents or runners or to pay or reward, directly or indirectly, those who bring or influence the bringing of cases to his office, …. A duty to the public and to the profession devolves upon every member of the Bar, having knowledge of such practices upon the part of any practitioner, immediately to inform thereof to the end that the offender be disbarred.” This quotation is virtually taken from Canon 28 of our Professional Ethics.

Oklahoma lawyers have frequently been disciplined and disbarred for soliciting business by direct or indirect means, and lawyers who fall within the purview of the question propounded in this instance certainly are subjecting themselves to disciplinary action.