Can a lawyer who spots a newly filed suit send the defendant a copy of the petition and offer his services before the defendant is served?

Plain-English summary

The Board was asked two related questions. First, whether it is proper for a lawyer who sees a suit filed in the court clerk's office, before summons is served, to secure and send the defendant a copy of the petition, advise the defendant of the filing, and offer his services. Second, whether it is proper for a local attorney who has not been employed as local counsel, on seeing such a suit, to take a copy of the petition and mail it to the legal staff of a defendant corporation maintaining its own legal staff, with a like offer of service.

The Board answered the first inquiry in the negative, assuming no relationship, business or otherwise, between the lawyer and the defendant. Such conduct is interdicted by Rule 29 as solicitation of business and would subject the lawyer to disciplinary action. As to the second inquiry, the answer turned on the relationship between the local attorney and the defendant. If the local attorney is on a general retainer, he is not subject to criticism, because, as contemplated by Rule 29, the personal relationship would warrant his conduct as a courtesy of a lawyer to a client. If he is not on a general retainer and is only occasionally employed by the defendant, his conduct in obtaining the petition and forwarding it is disapproved as an implied solicitation of business interdicted by Rule 29, aggravated by the express solicitation.

Currency note

This opinion was issued in 1936, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The flat ban on solicitation has since been narrowed by constitutional decisions on lawyer advertising and solicitation beginning with Bates v. State Bar of Arizona (1977). Subsequent rule amendments and later opinions have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer alert a stranger-defendant to a newly filed suit and offer to help?

A: No. The opinion held that, absent any relationship, sending the petition and offering services before service is solicitation interdicted by Rule 29, subjecting the lawyer to discipline.

Q: Did the answer change if the lawyer already represented the defendant?

A: Yes. If the lawyer was on a general retainer with the defendant, the opinion treated forwarding the petition as a permissible courtesy warranted by the personal relationship.

Q: What about a lawyer only occasionally employed by the defendant?

A: The opinion disapproved that, treating the lawyer's act as an implied solicitation interdicted by Rule 29 and aggravated by the express offer of service.

Background and rules framework

The opinion applied Rule 29 of the canon-era Oklahoma Rules of Professional Conduct, which prohibits solicitation of professional employment but recognizes conduct warranted by personal relations. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 29 (1929 Oklahoma Rules of Professional Conduct): prohibits solicitation of professional employment; conduct warranted by personal relations is not improper.

See also

• Okla. Bar Ethics Op. 119: Insurance-adjusting service cards mailed to companies
• Okla. Bar Ethics Op. 89: Mailing form letters to solicit tax-refund work
• Okla. Bar Ethics Op. 124: A professional card in a city directory

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-125/

Original opinion text

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

Adopted October 23, 1936

The Board is in receipt of the following request for an advisory opinion:

"Is it proper for a member of the bar, who sees a suit filed in the office of the court clerk, and before the summons is served, to secure and send a copy of the petition to the defendant, advising the defendant of the filing of the suit, and informing the defendant that if he (the member of the bar) can be of any service to feel free to call upon him?"

"Is it proper where a member of the bar who is the local attorney has not been employed as local counsel, who sees a suit filed in office of court clerk, and before summons is served, to take a copy of petition, where the defendant is a corporation maintaining its own legal staff and mail the petition to the legal staff of such corporation informing it of the suit and advising that if he can be of any service, to feel free to call upon him?"

In response:

Assuming that no relationship, business or otherwise, exists between the member of the bar and the defendant, the response to the first inquiry must necessarily be in the negative. Such conduct is interdicted by Rule 29 of the rules of professional conduct of the State Bar as a solicitation of business, and would accordingly subject the offending member to disciplinary action.

Assuming that "local attorney" refers to a member of the bar who has some connection with the defendant, the response to the second inquiry depends largely upon the nature of the relationship between them.

If the local attorney is on a general retainer he is not subject to criticism in the premises, because, as contemplated by Rule 29, the personal relationship would warrant his conduct as a courtesy of a member of the bar to a client.

If he is not on a general retainer and occasionally only is employed by the defendant, his conduct in obtaining a copy of the petition and forwarding it to the defendant is disapproved of as constituting an implied solicitation of business which is interdicted by Rule 29. His conduct in the premises is aggravated, of course, by the express solicitation.