May an attorney retained by a trade association committee accept a circular inviting individual members to call him for advice on their own problems and to remit his fees directly to him?

Plain-English summary

The committee was asked about a trade association committee that hired an attorney to appear before an administrative body on the members' common interest, then circulated a letter telling members of the successful presentation, asking them to contribute according to their size to retain the attorney and pay his accumulated bills, directing them to remit directly to the attorney, and inviting them to call the committee's counsel for advice on their own problems. The committee said it was difficult to believe such a letter could have been prepared and sent without the attorney's knowledge, but that even if it were, he would have to take immediate remedial action to keep the letter from violating the canons.

The committee quoted the second paragraph of Canon 35, which permits a lawyer to accept employment from an organization such as an association, club, or trade organization to render legal services in a matter in which the organization as an entity is interested, but provides that the employment should not include rendering legal services to the organization's members about their individual affairs. It concluded that the closing paragraph of the letter, welcoming contributors to call on the lawyer for advice about their own problems, was in direct violation of that canon, which the ABA's ethics committee had construed the same way on numerous occasions.

The committee also condemned the proposed payment method. Because the attorney was employed by the committee and not by the individual members, his statements should reflect the value of his services and be submitted to the committee, which (or the association) should gather the funds and pay him directly. Routing payments through individual members risked overpayment or underpayment and would tend to make each paying member feel entitled to call on the attorney's services directly, which the committee said in effect violated Canon 27's prohibition on solicitation and could result in a Canon 34 violation if sums forwarded exceeded the value of his services and were remitted back to the association. It closed by directing that, if the letter were circulated without the attorney's knowledge, he must under no conditions consult with individual members about their private problems and must promptly turn over all sums received to the association without retaining any portion as fees.

Currency note

This opinion was issued in 1962, 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 solicitation concerns underlying part of the opinion no longer reflect current law in the form stated: the United States Supreme Court held in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that categorical bans on truthful lawyer advertising violate the First Amendment, and group and association legal-service arrangements are treated differently today. 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 association invite members to consult its retained counsel about their individual problems?

A: No. The committee found the invitation in direct violation of Canon 35, which permits an organization to retain a lawyer for the entity's interests but not to extend that employment to legal services for members about their individual affairs.

Q: What was wrong with members paying the attorney directly?

A: The committee said the attorney was employed by the committee, not the members, so his bill should go to the committee, which should pay him. Direct member payments risked over- or underpayment, tended to make each payer feel entitled to the lawyer's personal services (a Canon 27 solicitation concern), and could create a Canon 34 problem if excess sums were remitted back to the association.

Q: What if the letter went out without the attorney's knowledge?

A: The committee said he still had to take immediate remedial action, must under no conditions advise individual members about their private problems, and must promptly turn over all sums received to the association without keeping any portion as fees.

Background and rules framework

The opinion applied Canon 35 of the Canons of Professional Ethics (a lawyer may serve an organization as an entity but not render services to its members on their individual affairs), Canon 27 (the bar on solicitation), and Canon 34 (the bar on improper division of fees), all adopted in Oklahoma, to a trade association's circular about its retained counsel. It noted the ABA committee's repeated construction of Canon 35. 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): prohibits the solicitation of business.
• Canon 34 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): governs the division of fees.
• Canon 35 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): a lawyer may serve an organization as an entity but the employment should not include legal services to members about their individual affairs.

See also

• Okla. Bar Ethics Op. 207: Insurance company ad announcing a lawyer as its special representative
• Okla. Bar Ethics Op. 220: Habitual fee cutting below the minimum fee schedule
• Okla. Bar Ethics Op. 219: Announcing availability to serve other lawyers

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-221/

Original opinion text

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

Adopted October 18, 1962

INQUIRY

A committee of a trade association employs an attorney to protect or further the common interest of the combined members by appearing in behalf of the association before an administrative body. Thereafter, by letter the committee notifies the membership of the association of the attorney’s successful presentation and asks the members to contribute according to their size in order to retain the further services of the attorney and to pay his accumulated bills. It further directs the members to remit directly to the attorney and closes with the following paragraph:

“Contributors are welcome to call on the committee’s counsel, John Doe, for advice on problems concerning __. This service will be limited at the discretion of the ______ Committee.”

Does such procedure constitute an unethical practice?

OPINION

It is difficult to believe that a letter of this sort addressed to the members of the association could have been prepared and transmitted without the knowledge of the attorney involved; but even if it were without his knowledge, it would require immediate remedial action upon his part to prevent the notification letter from being a violation of the canons of professional ethics.

The second paragraph of Canon 35 reads as follows:

“A lawyer may accept employment from any organization, such as an association, club or trade organization, to render legal services in any matter in which the organization, as an entity, is interested, but this employment should not include the rendering of legal services to the members of of such an organization in respect to their individual affairs.”

It is quite obvious that the last paragraph of the notification letter welcoming the contributors to call upon the lawyer for advice concerning their problems is in direct violation of this canon. The canon has been so construed upon numerous occasions by the Committee on Professional Ethics of the American Bar Association.

The method by which the association proposes to pay the attorney is likewise reprehensible. The attorney has been employed by the committee of the association and not by the individual members. His statements for services should be in relation to the value of the services which he performs and should be submitted to the committee. The committee or the association should then acquire the funds from its members or from some other source and pay the attorney directly. The procedure outlined is fraught with danger of either overpayment or underpayment; and would tend to give each individual member of the association the feeling that he, having paid the attorney directly, was entitled to call upon his services directly. This, in effect constitutes a violation of Canon 27 prohibiting the solicitation of business; and could well result in the violation of Canon 34 in the event the sums forwarded to the attorney were in excess of the value of his services and resulted in the remission by him to the association.

As indicated above, if the letter were circulated without the knowledge of the attorney involved, he should under no conditions consult with the individual members of the association in connection with their own private problems, and all sums received by him should be turned over promptly to the association without retaining any portion thereof in payment of his fees.