May a lawyer let a salaried investigator carry a business card showing the lawyer's name and 'attorney at law,' and what responsibility does the firm bear for the investigator's conduct?

Plain-English summary

The committee was asked whether an attorney may allow a special investigator to use a business card showing the attorney's name and "attorney at law," the attorney's post office box and city, the investigator's name and "special investigator," and phone numbers for both. Adopting portions of ABA Informal Opinion 909, it answered that the card is permissible but only under significant limits, because the firm is fully accountable for the investigator's conduct.

The committee explained that a firm may employ a full-time salaried investigator (with compensation not tied to fees, consistent with Canon 34's division-of-fees rule), but that as the investigator's principal the firm is responsible for all his conduct. It identified the chief risks: if the investigator advertised, praised, or solicited business for the firm, that would clearly violate Canon 27; appearing at an accident scene or interviewing those involved before the firm was retained would be almost impossible to defend; advising witnesses or parties of their legal rights would be unauthorized practice making the firm responsible under Canon 47; and contacting an adverse party represented by counsel would violate Canon 9. Because the investigator acts as the firm's agent, he could not do anything a lawyer could not ethically do, implicating Canons 15, 16, 18, 22, 28, 29, and 32.

On the card itself, the committee reasoned that if a firm may ethically employ an investigator, it is permissible and sometimes desirable for him to identify himself, and presenting a card is not different in principle from oral identification. But because a card is a physical article whose misuse is far easier, it would be improper for the investigator to display it other than to persons he interviews in a matter for which the firm was previously retained, and he should leave a card only where there is an affirmative and legitimate purpose. If cards turned up in appreciable numbers or suspicious circumstances among potential claimants, that would justify suspicion of unethical conduct. The committee emphasized that the investigator must not investigate any matter the firm has not already been employed on, and that his appearance at an accident scene would make a charge of "chasing" almost impossible to refute.

Currency note

This opinion was issued in 1967, during the era of the Canons of Professional Ethics, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The advertising and solicitation premises underlying this opinion no longer reflect current law: 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, though the duty to supervise non-lawyer agents survives in modern form (Rule 5.3). 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's investigator carry a business card showing the lawyer's name?

A: Yes, within limits. The committee concluded the card is permissible but may be displayed only to persons the investigator interviews in a matter for which the firm was already retained, and left only where there is a legitimate purpose.

Q: Is the firm responsible for what its investigator does?

A: Yes, fully. The committee held that the firm assumes full responsibility for any conduct by the investigator that would be unethical if done by a lawyer, and practically would bear the burden of refuting any charge.

Q: Could the investigator go to an accident scene before the firm was hired?

A: No. The committee said the investigator must not investigate any matter the firm has not already been employed on, and that his appearance at an accident scene would make a charge of "chasing" almost impossible to refute.

Background and rules framework

The opinion applied Canon 27 (advertising and solicitation) and Canon 28 (stirring up litigation), with Canon 34 (division of fees), Canon 47 (aiding unauthorized practice), Canon 9 (contact with represented parties), and Canons 15, 16, 18, 22, 29, and 32, all of the Canons of Professional Ethics adopted in Oklahoma, to a firm's employment and identification of a salaried investigator. It adopted portions of ABA Informal Opinion 909. The duty to supervise non-lawyer agents corresponds to today's Model Rule 5.3. 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): advertising and solicitation.
• Canon 28: stirring up litigation.
• Canon 34: division of fees only with another lawyer.
• Canon 47: aiding the unauthorized practice of law.

Other opinions cited:

• ABA Standing Committee on Professional Ethics Informal Opinion 909.

See also

• Okla. Bar Ethics Op. 240: Lawyer-adjuster contacting a represented party
• Okla. Bar Ethics Op. 235: Lawyer publicity about pending litigation
• Okla. Bar Ethics Op. 249: Lawyer also engaged in a real estate business

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-250/

Original opinion text

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

Adopted May 11, 1967

INQUIRY

This Committee has been requested to render an opinion as to whether or not an attorney may allow a special investigator to use an identification card, commonly called a business card, which contains substantially the following information: the attorney's name and the designation, "attorney at law" in the upper right hand corner, the post office box and city of the attorney in the upper left hand corner, the center of the card containing the name of the special investigator and a designation, "special investigator", the lower left and the lower right hand side of the card containing phone numbers of the special investigator and the attorney.

1. ADVERTISING–Canon 27 provides in part that it is unprofessional to solicit professional employment by circulars, advertisement, through touters or by personal communication or interviews not warranted by personal relations.

2. DIVISION OF FEES–Canon 34 provides that no division of fees for legal services is proper except with another lawyer based upon a division of services or responsibility. We believe that it is ethically possible for a law firm to employ on a full-time basis an investigator, so long as his compensation or remuneration is on a salary basis without reference to the fees received by the attorney for the work performed for his legal services, but it must be specifically pointed out that the firm would, as the investigator's principal, be accountable for any and all of his actions and conduct, including those involving the following canons, as set forth in Informal Decision No. 909, of the American Bar Association's Standing Committee on Professional Ethics, in response to a similar inquiry:

The greatest risk is a possible clear violation of Canon 27 or of Canon 28, prohibiting all forms of advertising and solicitation. If the investigator in any way advertised or praised the abilities of or solicited business for the firm, there would be a clear violation of Canon 27 for which the firm probably would be held responsible. If an investigator were to appear at an accident scene or seek to interview any of those involved or any witnesses prior to the time the firm had been actually retained in connection with the matter, the apparent violation would be almost impossible for the firm to disprove. The dangers of the appearance of solicitation and advertising would be increased tremendously by the possession by the investigator of a card showing the firm name or address or telephone number.

Obviously, the investigator, not being a lawyer, could not advise witnesses or parties as to their legal rights, and if he did he would be engaged in the unauthorized practice of law and the law firm would be guilty of an apparent violation of Canon 47, since it put him into a position to do so–or made it possible for him to do so.

If the party adverse to the firm's client is represented by counsel, any communication by the firm's investigator with the adverse party would seem to constitute a clear violation by the firm of Canon 9, which forbids such communications with parties represented by counsel.

The investigator, as the agent of the law firm, could not, without bringing the firm's ethics into question, do anything which a member of the law firm could not do ethically. Canon 15, relating to how far a lawyer may go in supporting his client's cause, Canon 16, requiring a lawyer to use his best efforts to restrain and prevent his clients from doing things which the lawyer himself ought not to do, Canon 18, requiring a lawyer to treat adverse witnesses and suitors with fairness and due consideration, Canon 22, constraining a lawyer to deal candidly with the facts in taking statements of witnesses and in drawing affidavits and other documents, Canon 28, relating to stirring up litigation or soliciting cases, Canon 29, requiring the upholding of the honor and dignity of the profession in all respects and at all times, and Canon 32, stating the lawyer's duty in the last analysis, are also among those involved. Violation of any ethical principle by the investigator would, we believe, justify a charge of unethical conduct against the law firm which employed him. Practically speaking the firm would have the burden of refuting the charge.

While the employment by a law firm of an investigator is not in itself unethical in our opinion, it is our further opinion that the law firm which does so assumes full responsibility for any act or conduct by the investigator which would be unethical if done by a lawyer.

As to the precise question of the card carried by the investigator, we have concluded that proper possession and use by a law firm's investigator of a business card is ethically permissible. Our reasoning is that if a law firm may ethically employ an investigator, in the first instance, it is permissible and, in some instances at least, desirable that he identify himself.

Doing so by presenting such a card is, to our minds, not really different in principle from his doing so orally. It is true, of course, that the card is a physical article and that the possibilities of its improper use or effect are far greater than in the case of an oral identification. For that reason, it would be improper for the investigator to display the card other than to persons he interviews in connection with a case in which the firm previously has been retained, and that he should leave the card with or for a person only when there is an affirmative and legitimate purpose for doing so. If the cards started turning up in any appreciable numbers or in suspicious circumstances in the hands of potential clients or claimants, there would be obvious cause for justified suspicion of unethical conduct on the firm's part.

In any case, all of the admonitions and principles discussed above would be applicable. While all of them are of critical importance, we desire to emphasize that an investigator employed by a law firm must not be permitted to "investigate" in any manner any accident or other matter in connection with which the firm has not previously been actually employed, and that the firm must bear the burden of avoiding even the slightest appearance of solicitation by the investigator of clients or matters for the firm. His very appearance at the scene of an accident would seem to us to make it almost impossible to refute a charge of "chasing".

This Committee adopts as its opinion those portions of the American Bar Association's Standing Committee on Professional Ethics, Informal Opinion 909, as set forth in this opinion.