Can a lawyer serving as a union's regional legal-aid counsel take case intake forms from the union and write injured members offering to take their cases?

Plain-English summary

The inquiry described a lawyer who became regional counsel for the Legal Aid Department of the Brotherhood of Railroad Trainmen. An injured employee, or someone on his behalf, would supply the lawyer a form giving a complete history of the accident, injuries, medical treatment, earnings, whether a claim agent had interviewed him, whether a release had been signed, and whether a lawyer had been employed. The regional attorney would then write the employee that he had a good case and should have no difficulty recovering, inviting him to call for assistance, and would report any non-response to the department manager.

The committee was unanimous that each step was improper. The first step made the regional attorney a party to a lay agency's efforts to bring cases to him; the second was a clear attempt to solicit business and stir up litigation; and the third was an attempt to have the lay agency exert its influence to have him employed. The committee concluded that the procedure violated Texas Canons 24, 25, 27, 28, and 32 and American Bar Canons 27, 28, and 35. The vote was 10-0.

Currency note

This opinion was issued in 1951, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The solicitation restriction the opinion applies predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held that categorical bans on lawyer advertising violate the First Amendment, and predates decisions such as Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (1964), which extended First Amendment protection to union legal-aid referral plans; the Canon framework used here has since been substantially narrowed, and lawyer solicitation and a lawyer's professional independence are now addressed by ABA Model Rules 7.3 and 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 Treat this page as historical context, not current guidance.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: Could a lawyer take case intake forms supplied through a union's legal-aid department?

A: The committee held (10-0) that doing so made the lawyer a party to a lay agency's case-funneling and was improper under the Canons then in force.

Q: Could the regional attorney write injured members offering to take their cases?

A: No. The committee found the letter a clear attempt to solicit business and stir up litigation, in violation of the solicitation Canons.

Q: What was wrong with reporting members who did not respond?

A: The committee viewed reporting non-responses to the department as an attempt to have the lay agency use its influence to get the lawyer employed, which it also found improper.

Background and rules framework

The opinion interprets former Texas Canons 24, 25, 27, 28, and 32 and ABA Canons 27, 28, and 35, the advertising, solicitation, stirring-up-litigation, and lay-intermediary provisions then in force. The modern analogs are ABA Model Rule 7.3 (solicitation of clients) and Model Rule 5.4 (professional independence of a lawyer, including lay interference with the lawyer-client relationship).

Citations and references

Rules of Professional Conduct:

• MR 7.3 (solicitation of clients), as the modern analog
• MR 5.4 (professional independence of a lawyer), as the modern analog
• Texas Canons 24, 25, 27, 28, 32, and ABA Canons 27, 28, 35

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (U.S. 1977), held categorical bans on lawyer advertising unconstitutional (noted for currency; not cited in the 1951 opinion)
• Brotherhood of Railroad Trainmen v. Virginia, 377 U.S. 1 (U.S. 1964), extended First Amendment protection to union legal-aid referral plans (noted for currency; not cited in the 1951 opinion)

See also

• TX Ethics Op. 53: Power-of-Attorney Clause Assuming All Costs
• TX Ethics Op. 42: Sharing Offices With an Abstract and Title Company
• TX Ethics Op. 44: Large Neon Office Signs as Improper Advertising

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-41/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_41.pdf

Original opinion text

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

QUESTION PRESENTED

Is the following course of procedure in violation of the Canons of Ethics of the State Bar of T exas?

An attorney becomes regional counsel for the Legal Aid Department of the Brotherhood of Railroad Trainmen, and is furnished with a form by, or on behalf of, an injured employee giving a complete history of his accident, the nature of his injuries, the medical treatment received, his present physical condition, his earnings, whether or not the claim agent has interviewed him, whether or not a release has been executed, whether or not a lawyer has been employed, and, if so, who, and similar data.

The regional attorney then writes such injured employee advising him that he has a good case, and should have no difficulty in recovering, but if he is unable to do so, not to hesitate to call upon such regional attorney for assistance.

If a response is not received from the injured employee, then regional attorney reports that fact to the manager of the Legal Aid Department of the Brotherhood of Railroad Trainmen.

18 Baylor L. Rev. 213 (1966)

INTERMEDIARIES
Furnishing the regional attorney for the Legal Aid Department of an employee's union with a form containing a history of an employee's accident, whether an attorney has been employed, and similar data, is improper.

SOLICITATION - STIRRING UP LITIGATION
The regional attorney for the Legal Aid Department of an employee's union may not write an injured employee, advising him that he has a good case and not to hesitate to call upon him for assistance.

INTERMEDIARIES
The regional attorney for the Legal Aid Department of an employee's union may not report to the manager of the department that a response to a letter by the attorney, advising the employee not to hesitate to call upon the attorney for assistance, has not been received.

Canons 24, 25, 27, 28, 32. A.B.A. Canons 27, 28, 35.

It is the unanimous view of this committee that the first step of the above procedure makes the regional attorney a party to the efforts upon the part of a lay agency to bring cases to him, that the second step is a clear attempt upon the part of such regional attorney to solicit business and stir up litigation, and the third step constitutes an obvious attempt to have such lay agency exert its influence to have the regional attorney employed. Hence, this procedure clearly violates Texas Bar Canons 24, 25, 27, 28 and 32, and American Bar Canons 27, 28 and 35. (10-0)

Tex. Comm. On Professional Ethics, Op. 41 (1951)