What are a lawyer's duties when representing 'heir-finders' whose business may be unlawful, and can the lawyer keep representing them?

Plain-English summary

The committee was asked about the ethics of representing laymen engaged in "heir-finding": laymen who search public records, identify persons with possible claims to escheated property, purchase those claims for cash, and then retain counsel to prosecute the assigned claims on a contingent-fee basis.

The committee began by noting a threshold question it lacked jurisdiction to answer: whether the heir-finders' activity is itself lawful. It concluded that if the activity is ultimately determined unlawful, lawyers representing heir-finders would be ethically obligated to advise their clients of that, and that even absent an authoritative decision, a lawyer who is of the opinion that the activity is unlawful should disclose that opinion to the client, citing EC 7-3. If the client refuses to accept that opinion, the lawyer's conduct is governed by EC 7-5: the lawyer may continue the representation even though the client pursues a course contrary to the lawyer's advice, so long as the lawyer does not knowingly assist the client in illegal conduct or a frivolous legal position. Assuming the activity is lawful, the committee found that counsel may prosecute the purchased claims on a contingent-fee basis, but cautioned that the representation is "fraught with ethical peril": if the heir-finder seeks advice before purchasing claims, the lawyer may become involved in direct or indirect solicitation of claims through a lay intermediary, and must be careful to avoid any violation of DR 2-103 or DR 2-104.

Currency note

This opinion was issued in 1974, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance. Verify against current Rules 4-1.2 and 4-7.18 before relying on any specific requirement mentioned here.

Common questions

Q: If a lawyer thinks the heir-finder's business is unlawful, must the lawyer tell the client?

A: Under this opinion, yes. The committee concluded that a lawyer who believes the activity is unlawful should disclose that opinion to the client, citing EC 7-3.

Q: Can the lawyer keep representing the client who disagrees with that advice?

A: Yes, within limits. Under EC 7-5, the lawyer may continue even if the client takes a contrary course, so long as the lawyer does not knowingly assist illegal conduct or a frivolous legal position.

Q: What was the committee's solicitation concern?

A: The committee warned that if the heir-finder consults the lawyer before buying claims, the lawyer risks direct or indirect solicitation of claims through a lay intermediary, and must avoid violating DR 2-103 or DR 2-104.

Background and rules framework

The opinion applied EC 7-3 and EC 7-5 of the former Code of Professional Responsibility (the lawyer's role as adviser) and DR 2-103 and DR 2-104 (solicitation). In current Florida practice the adviser duties correspond to Rule 4-1.2 (scope of representation, including the limit on assisting crime or fraud), and the solicitation concern corresponds to Rule 4-7.18 (direct contact with prospective clients); the Model Rule analogues are 1.2 and 7.3.

Citations and references

Rules of Professional Conduct:

• CPR DR 2-103, DR 2-104 (solicitation); EC 7-3, EC 7-5 (lawyer as adviser)

Cases:

• Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968), cited on contingent purchase and prosecution of claims
• The Florida Bar v. Heller, 247 So.2d 434 (Fla. 1971), referenced in the opinion's note

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-73-32/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-73-32-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 73-32
March 15, 1974
Advisory ethics opinions are not binding.
A lawyer who represents heir-finders must inform them if he is of the opinion that heir-finding is unlawful. The lawyer may continue the representation of his client so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position.
Note: See The Florida Bar v. Heller, 247 So.2d 434 (Fla. 1971).
CPR: DR 2-103, 2-104; EC 7-3, 7-5
Case: Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968)
Vice Chairman Daniels stated the opinion of the committee:
Inquiry is made as to certain ethical considerations involved when lawyers represent laymen engaged in the business of "heir-finding." These laymen search public records and determine that certain persons may have valid claims to escheated property, purchase such claims for cash, and then retain counsel to prosecute the assigned-purchased claims on a contingent fee basis.
A threshold question exists — whether such laymen may lawfully engage in such activities — which this Committee lacks jurisdiction to answer. If, in fact, it is ultimately determined that such lay activity is unlawful, then, and in that event, lawyers representing heir-finders would be ethically obligated to so advise their clients. Moreover, even in the absence of any authoritative decision, if the lawyer is of the opinion that heir-finding by laymen is unlawful, he should disclose such opinion to his client. As stated in EC 7-3:
. . . In serving a client as adviser, a lawyer in appropriate circumstances should give his professional opinion as to what the ultimate decisions of the courts would likely be as to the applicable law.
If the client refuses to accept the lawyer's opinion as to the unlawfulness, the lawyer's conduct should then be governed by EC 7-5, which provides:
A lawyer as adviser furthers the interest of his client by giving his professional opinion as to what he believes would likely be the ultimate decision of the courts on the matter at hand and by informing his client of the practical effect of such decision. He may continue in the representation of his client even though his client has elected to pursue a course of conduct contrary to the advice of the lawyer so long as he does not thereby knowingly assist the client to engage in illegal conduct or to take a frivolous legal position. A lawyer should never encourage or aid his client to commit criminal acts or counsel his client on how to violate the law and avoid punishment therefor.
Assuming arguendo that heir-finding by laymen is a lawful activity, lawyers representing heir-finders with purchased claims may properly prosecute such claims for the heir-finders on a contingent fee basis. Since the inquiries state that such claims are purchased from the heirs for cash, no questions are presented as to what ethical questions would arise if such claims were purchased on a contingency basis by the heir-finders who in turn employed counsel on a contingent fee basis. Cf., Sullivan v. Committee on Admissions and Grievances, 395 F.2d 954 (D.C. Cir. 1968).
However, even if the lay heir-finders' activities are lawful, legal representation of such finders is fraught with ethical peril. If the heir-finder seeks legal advice before purchasing claims, the lawyer may well get involved in the direct or indirect solicitation of claims through a lay intermediary. In any such situation, the lawyer should be extremely careful to avoid any violation of DR 2-103 or DR 2-104.