ETHICS OPINION 656-1980 SOLICITATION

Opinion Number 656

NEW YORK COUNTY LAWYERS’ ASSOCIATION

COMMITTEE ON PROFESSIONAL ETHICS

In answering questions this Committee acts by virtue of the following provision of the By-laws of the Association, Article 57, Section 3:

“This Committee shall have power, when consulted, to advise inquirers respecting questions of proper professional conduct, reporting its action to the Board of Directors from time to time.”

It is understood that this Committee acts on specific questions submitted ex parte and in its answers bases its opinion on such facts only as are set forth in the question.

QUESTION NO. 656

 

A charitable organization desires to raise funds by urging members of the public to include bequests to the Charity in their wills. It offers to provide free legal services by volunteer lawyers to prepare any will which contains a bequest to the charity. The charity plans to run newspaper advertisements offering this service to the public.

 

A lawyer who provides free legal services in this program asks whether there is any ethical objection.

ANSWER TO QUESTION NO. 656

This Committee does not pass upon questions of law. Accordingly, we do not determine whether or not the charitable organization’s offer to provide legal services and actually providing such services would constitute unauthorized practice of the law. If they do, it would be improper for a lawyer to aid the organization in such illegal activity, DR3-101(A).

 

The proposed plan is violative of a number of provisions of the Code. Although in form it is the charitable organization which solicits members of the public in connection with the preparation of their wills, in substance it is the lawyer who, by participating in the plan, offers his professional services and solicits the employment. Solicitation of course is forbidden by DR 2-103(A). What the lawyer may not do himself he may not do through another person. DR 2-103(D); DR 1-102(A)(2). The relinquishment of his fee to the charitable organization, while superficially praiseworthy, may also be regarded as a gift designed to induce a recommendation resulting in employment by a client, contrary to the dictate of DR 2-103 (B), which provides:

“A lawyer shall not compensate or give anything of value to a person or organization to recommend or obtain employment by a client, or as a reward for having made a recommendation resulting in employment by a client, except by any of the organizations listed in DR 2-103 (D).”

 

Although the Code specifically exempts from its injunctions the operations of a “qualified legal assistance organization” (Definition 8; DR 2-103 (C)(2)); DR 2-103 (D) (4); a charitable organization which offers free legal services to members of the public whether or not they be members or beneficiaries of the organization does not comply with the conditions required to qualify with the Rule DR 2-103 (D)(4) supra; N.Y. State 416 (1975).

 

The possibility that the plan may be utilized by a lawyer for the enhancement of his own practice cannot be ignored. He could not prepare the will in vacuo, simply providing a bequest to the charitable organization. He would have to consider all the relevant circumstances, including who are the natural beneficiaries of the testator’s bounty, what tax implications may be involved, who are the appropriate fiduciaries and numerous other factors that may influence the contents of the will. It is easy to perceive that with this immersion in client’s affairs the lawyer who prepares the will has a likely chance to represent the client in other matters, and to handle the estate, if he survives the client.

 

Similar questions were considered in ABA Inf. 1288 (1974) and ABA Inf. C-687 (1963), and in each case the participation of the lawyer in the plan for the preparation of the will was condemned. In the latter opinion (quoted also in the former) it was pointed out that:

“The request to prepare a will must come from the maker of the will. There are cases where at the request of one party, an attorney may render professional services to a third party, but in such cases the attorney must bring to his representation no divided loyalty. The true attorney and client relationship must always be established between the attorney and the maker of the will.”

A further danger was emphasized in ABA Inf. 1288. supra, where the Committee cited DR 5-107; “Avoiding Influence by Others than the Client” and stated:

“The lawyer would be influenced before the attorney-client relationship even arose and would be reluctant to seem disloyal to the church which has recommended him by recommending against a gift where such advice would be in the best interest of the testator.”

 

Accordingly, it is the opinion of the Committee that participation by a lawyer in the proposed program would be violative of the Code.

 

September 23, 1980