ETHICS OPINION 331-1935

NUMBER 331 1935

Question. A, an attorney, was employed generally by a group of the principal manufacturers of an established line of merchandise which is under N.R.A. Code Regulations. The requirements of the Code affecting such goods are believed to be contrary to the statute law of the State of New York. The effect of the enforcement of the code provisions will be to stop the manufacture and sale of the aforesaid goods. This group requested A to form an association, and this association retained A as its attorney to protect its members in said industry, and agreed to pay the reasonable fees of A and his legitimate expenses. It quickly developed that much professional work and expense would attend the efforts of A. The association requested A to induce certain smaller dealers in said merchandise to join the association so as to bear some part of the cost of what the association considered necessary for the salvation of the business, and for the protection of dealers as individuals. A induced a large number of small dealers to join the association for the purpose above stated. A received and will receive no compensation for this solicitation.

A threat has been made by the Code authorities to prosecute some one dealer-member of the association for infringement of the Code as a test case. Who that member may be is uncertain. A condition of the retainer of A by the association is that he will defend any member who may be charged with breach of the Code.

Was it proper professional conduct for A to solicit parties to join the said association under the stated condition and for the purpose above stated?

Answer. In the opinion of the Committee there is no professional impropriety in a lawyer’s accepting employment from a group or association to solicit others to join them for mutual protection, if it is not a cover or device for soliciting his professional employment by the individuals thus induced to join. It is the interest of the members, not the individual interests of the lawyer, which determine the propriety of his conduct in working for his clients.

The Committee is of the opinion that “When the employment is an incident of the advantage of the members, the fact that the claims are solicited for the latter purpose should not preclude the lawyer from accepting the employment, while if the end in view is the solicitation of employment for the lawyer, he should not permit such solicitation (in that case by the association), in his behalf, nor accept the employment so solicited.” (Announcement of Opinion with the concurrence of the Committee on Unlawful Practice of the Law, May 2, 1921.)

The representation of the individual member at the expense of the association presents another question. It may be a violation of Section 280 of the Penal Law, This Committee does not ordinarily construe or express an opinion upon the application of Penal Laws. Aside from the provisions of this Section, the Committee is of the opinion that any representation of an individual member upon the solicitation, or at the expense of the association, can only be properly undertaken when it is for the promotion of the common interests of its members, and not merely for the benefit of the individual.

The inquiry appears to imply that the purpose in the given case is to test in the interest of all, a question of law and of right. Which, in the nature of the situation, can best be presented through an individual member. If such be the fact, the Committee (but for Section 280 of the Penal Law) would not consider the acceptance of the specific employment professionally improper.

But the Committee does not approve professional advice to violate a law (whether valid or not), in order to test its validity. (See Opinion 27).