Can a lawyer accept retainers from a group of homeowners who were solicited as a class, when only one of them originally sought the lawyer's advice?

Plain-English summary

A large group of new-home buyers in a development formed an association to pursue their individual contractual claims against the builder. The claims were small and hard to litigate alone but substantial in the aggregate and shared common questions of law and fact, so the group sought to proceed through one attorney. The association's chairman consulted a lawyer, who directed an opinion poll of the homeowners and prepared a mimeographed "specific consent" retainer form for the chairman to circulate. A number of owners then concluded they had no claims and declined to sign. The lawyer asked whether, under Canons 16, 27, and 28, he could represent the association members who wished to pursue their claims.

The Committee concluded that the attorney should not accept the retainers proffered by the solicited claimants, while noting this did not affect his continued representation of the individual who first sought his advice. It reasoned that solicitation of strangers who are in the same class and have interests identical with those of an existing client is improper because it tends to stir up litigation; soliciting others encourages some to sue who might not otherwise seek redress, and a minor claimant may become a tool to obtain another with a more substantial claim.

The Committee acknowledged the facts did not appear to involve direct solicitation by the attorney, but found that his conduct in directing the opinion poll and preparing the consent form did not clearly exclude his participation in the solicitation. Because the procedures were improper for the attorney, Canon 16 applied and the attorney should dissuade his client from the solicitation.

Currency note

This opinion was issued in December 1963, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), and well before the 1984 Rules of Professional Conduct and all later revisions. It applied Canons 16, 27, and 28 of the former Canons of Professional Ethics. The constitutional treatment of group and class solicitation changed substantially after later United States Supreme Court decisions, and solicitation is now governed by RPC 7.3. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could the lawyer represent all the homeowners who were solicited to join the group action?

A: No. The Committee concluded he should not accept the retainers proffered by the solicited claimants.

Q: Could he still represent the person who first came to him?

A: Yes. The Committee said its conclusion did not affect his continued representation of the individual who originally sought his advice.

Q: Why was soliciting fellow claimants in the same class treated as improper?

A: The Committee reasoned that such solicitation tends to stir up litigation, encouraging some to sue who might not otherwise seek redress and letting a minor claimant be used to reach one with a larger claim.

Background and rules framework

The opinion applied Canon 16 (a lawyer's duty to advise against improper conduct), Canon 27 (advertising and solicitation), and Canon 28 (stirring up litigation) of the former Canons of Professional Ethics. The solicitation of prospective clients is now governed by RPC 7.3, and the lawyer's role in advising a client is addressed by RPC 1.2.

Citations and references

Rules of Professional Conduct (as in effect at the time):

• Canon of Professional Ethics 16 (advising client against improper conduct)
• Canon of Professional Ethics 27 (advertising and solicitation)
• Canon of Professional Ethics 28 (stirring up litigation)

Other opinions cited:

• ABA Committee on Professional Ethics and Grievances, Opinion 111 (1934)
• N.Y. County Lawyers Ass'n, Committee on Professional Ethics, Opinion 47-V (1914)
• Ass'n of the Bar of the City of New York, Committee on Professional Ethics, Opinions 586 (1941) and 717 (1948)
• Drinker, Legal Ethics 63, 251-252 (1953)

See also

• NJ ACPE Op. 274: Soliciting Escheat Claimants
• NJ ACPE Op. 666: Targeted Direct-Mail Solicitation of Tax-Appeal Clients

Source

• Landing page: https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp14-1.html

Original opinion text

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

86 N.J.L.J. 729
December 26, 1963

OPINION 14

Solicitation
Stirring up Litigation

A large number of buyers of new homes in a development formed an association to promote the resolution of their individual contractual claims against the builder. The claims, though small and difficult to litigate, in the aggregate constituted a substantial amount. Common questions of law and fact were involved. Thus it appeared more feasible to litigate through one attorney. The chairman of the group was dispatched to obtain advice on available remedies. The attorney he consulted directed him to obtain an opinion poll of all homeowners. The attorney then concluded that before starting a damage suit he should be furnished with a "specific consent" as to each individual claim; and he prepared a "mimeographed form of retainer" for the group chairman to circulate. Then, a substantial number of the owners concluded that they did not have any claims; and, they declined to sign the retainers (although all 84 owners had previously filled out a list of complaints).

The attorney now asks the Committee, whether or not, under the Canons of Professional Ethics, Canons 16, 27 and 28, it is improper for him to represent the various members of the association wishing to pursue their contractual claims, and, whether or not "continuance with this mode of procedure will conflict with any of the Canons mentioned."

It is the opinion of the Committee that the attorney should not accept the retainers proffered to him by those claimants who were solicited. This does not affect his continued representation of the individual who came seeking his advice in the first place. Solicitation by an attorney of strangers who are in the same class and have interests identical with those of his client is improper. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 111 (1934). It is generally disapproved because it tends to stir up litigation. N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Opinion 47-V (1914), Canons of Professional Ethics, Canons 27 and 28. Although the interest of any one of a group of claimants may be enhanced if others select the same attorney, the solicitation of the others tends to encourage some to join who might not otherwise seek redress. The minor claimant may thus become a tool to obtain another with a more substantial claim, See discussion in Drinker, Legal Ethics 251-252 (1953); Ass'n. of the Bar, City of New York, Committee on Professional Ethics, Opinions 586 (1941) and 717 (1948). At common law, stirring up litigation constituted the crime of maintenance, especially aggravated where the perpetrator was an attorney. Drinker, supra at 63.

Here the facts submitted to this Committee do not appear to involve direct solicitation by the attorney; nevertheless, his conduct in directing the opinion poll and in preparing the retainer or "specific consent" does not clearly exclude his participation in the solicitation. As the inquiry suggests, since the procedures are improper for the attorney, Canon 16 applies and the attorney should dissuade his client from the solicitation.