May a lawyer continue representing landowners after a landowners' association, without his knowledge, recommended his employment?

Plain-English summary

A member of The Florida Bar filed an inverse condemnation action against a governmental agency on behalf of several property owners, who sought to proceed as a class action. A landowners' association, whose members included some but not all of the owners in the area, mailed a report to its members advising them of the action, recommending that they contact the attorney who filed it, and circulating a form of employment contract. The attorney, who was not a member of the association, did not authorize, consent to, or know about the association's activities. When he learned what had happened, he instructed the association to stop. By then he had already received inquiries from some owners and agreed to represent several of them.

The committee concluded there was no impropriety in the attorney continuing to represent the individual defendants. Because he did not consent to the association's activities and did not know of them until after he had agreed to take the cases, and because he instructed the association to stop as soon as he learned what it was doing, the committee held that his continued representation did not violate the anti-solicitation provisions 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, and predates the United States Supreme Court decisions that reshaped lawyer advertising and solicitation rules. Treat this page as historical context, not current guidance. Verify against the current Florida advertising and solicitation rules (subchapter 4-7) before relying on any specific requirement mentioned here.

Common questions

Q: Was the lawyer disciplined for the association recommending his services?

A: No. The committee found no impropriety, because the lawyer did not authorize, consent to, or know of the association's recommendation.

Q: Why did it matter that he told the association to stop?

A: The committee noted that as soon as he learned what the association was doing he instructed it to stop, which supported the conclusion that the solicitation was the association's independent act and not his.

Q: Which rules did the committee apply?

A: The committee analyzed the conduct under the anti-solicitation provisions DR 2-103 and DR 2-104 of the Code of Professional Responsibility and found no violation.

Background and rules framework

The opinion applied DR 2-103 and DR 2-104 of the former Code of Professional Responsibility, which restricted a lawyer from recommending or soliciting professional employment and from having others do so on the lawyer's behalf. That subject corresponds in current practice to Model Rule 7.3 (solicitation of clients) and to the Florida advertising and solicitation rules in subchapter 4-7. This 1974 opinion predates the line of United States Supreme Court decisions, beginning with Bates v. State Bar of Arizona (1977), that reshaped the constitutional limits on those rules.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 2-103 (recommendation of professional employment)
• CPR DR 2-104 (suggestion of need of legal services)

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-74-25/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-74-25-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 74-25
October 25, 1974
Advisory ethics opinions are not binding.
An attorney who accepted employment by individual landowners in an inverse condemnation action, unaware that a landowners association had taken it upon itself to actively recommend his employment, may continue the representation.
CPR: DR 2-103, 2-104
Vice Chairman Sullivan stated the opinion of the committee:
A member of The Florida Bar filed an inverse condemnation action against a governmental agency in behalf of several of the owners of property located in the same area. The individual plaintiffs seek to proceed as a class action and pray for a decree requiring the governmental agency to commence condemnation proceedings against themselves and all owners of similarly situated property.
The landowners' association, whose members include some but not all of the owners of property in the area, periodically prepares and circulates reports to its members regarding the status of their property and the actions of the governmental agency relating to it.
The association mailed a report to its members advising them of the inverse condemnation action and recommending that they contact the attorney who filed the action. In the same mailing, the association also circulated a form of employment contract authorizing the attorney to represent a property owner in any condemnation action that might be instituted by the governmental agency. Later, the association, as part of a membership drive, mailed the same materials to owners of other property located in the same area.
While the commencement of the inverse condemnation proceeding was pending, the governmental agency did in fact commence condemnation actions against the owners of a small number of the parcels of property in the area.
The inquiring attorney, who is not a member of the association, did not authorize or consent or know about the actions of the association recommending his employment. When he found out what happened, he instructed the association to stop. Before he knew of the association's activities, the attorney received inquiries from some of the owners of the property involved in the condemnation actions and agreed to represent several of those owners.
He asks whether he may properly continue to represent those clients.
The Committee is of the opinion that there is no impropriety in the attorney's continuing to represent the individual defendants in the condemnation actions.
The attorney did not consent to the association's activities; he did not know of the association's activities until after he agreed to take the cases. As soon as he learned what the association had been doing, he instructed it to stop. Under these circumstances, we do not believe that his further representation of the defendants in the condemnation actions violates the anti-solicitation provisions of DR 2-103 or DR 2-104 of the Code of Professional Responsibility.