Ethics Opinion 124NEW YORK STATE BAR ASSOCIATION Professional Ethics Committee Opinion
Opinion #124 – 01/29/1970 (32-69)
Topic: Newspaper advertisement relative to multiple actions
advertisements, advice, class action, communication, newspapers and news media, recommendation for employment, solicitation
Digest: Not proper for plaintiff’s attorney to publicize motion to dismiss complaint in class action
Canon: EC 2-3, DR2-104 (A)(1)-(5)
Is it proper for an attorney, who has instituted an action in behalf of his client and others similarly situated against a municipality for damages resulting from the supply of bad water, to publish an advertisement in a local newspaper to the effect that a motion has been made by the defendant municipality to dismiss the complaint upon the ground that the matter is not properly one for a class action? The advertisement will notify such persons that there is a possibility that the class action might be dismissed and that they should therefore consult their own attorneys regarding the desirability of instituting their own suits. Presumably, the objective is to inform other parties that if the class action fails their rights will not be litigated unless they bring suits of their own. Also, if multiple suits are brought, the pressure’ on the municipality may be the same as in a class action and this may benefit the attorney’s client.
The proposed advertisement would be improper. Unsolicited legal advice is justified only in certain circumstances and upon certain conditions. Thus, EC 2-3 provides:”Whether a lawyer acts properly in volunteering advice to a layman to seek legal services depends upon the circumstances. The giving of advice that one should take legal action could well be in fulfillment of the duty of the legal profession to assist laymen in recognizing legal problems. The advice is proper only if motivated by a desire to protect one who does not recognize that he may have legal problems or who is ignorant of his legal rights or obligations. Hence, the advice is improper if motivated by a desire to obtain personal benefit, secure personal publicity, or cause litigation to be brought merely to harass or injure another. Obviously, a lawyer should not contact a non-client, directly or indirectly, for the purpose of being retained to represent him for compensation.”A lawyer who has volunteered such advice should not, ordinarily, accept employment resulting there from. DR 2-104 (A) (1)-(5) inclusive.When the interest of a client will be served by enlisting the cooperation of others similarly situated, an attorney may solicit or participate in soliciting such cooperation, provided his motive is not to benefit himself. N.Y.City 717 (1948), 343 (1935), 320 (1934); N.Y.County 228 (1924). However, the solicitation should ordinarily be handled by the client and not by the attorney. N.Y. City 586 (1941), 321 (1934); N.Y. County 278 (1930), 47-V (1914); Drinker ‘Legal Ethics’ page 251.This Committee approves the rule as stated in N.Y.City 717 (1948) that:”…when an attorney has been legitimately and properly retained by a litigant, and the needs of that litigant will be promoted by enlisting the cooperation of others who are actually interested in the outcome of that litigation, the attorney may solicit or participate in the solicitation of such cooperation. This Committee has also stated that such solicitation is an exception to the general rule, tolerated only in the interest of a client and not in the lawyer’s own interest, and the lawyer is under the duty to see that the solicitation is conducted in a dignified and modest manner without touting high pressure salesmanship and in such a way as to negative the implication of the self-advancement of the lawyer.”The opinion goes on to state that urging others to join in the litigation would be unethical if “it would constitute a solicitation of professional employment by personal communications which are not warranted by personal relations, in violation of (former) Canon 27”, or if it “might be regarded as stirring up litigation, in violation of (former) Canon 28.”The facts presented in the inquiry do not indicate that the establishment of the client’s rights depends upon having others institute similar suits or that the attorney has a duty to inform other parties of their rights. The advertisement would be unethical as an unwarranted solicitation and as a means of stirring up litigation.