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ETHICS OPINION NO. 83
OF THE MISSISSIPPI STATE BAR

RENDERED JUNE 2, 1983

Editor's Note: Refer to Rule 7.3.

SOLICITATION OF BUSINESS - Class Action Suit.

The Ethics Committee of the Mississippi State Bar has been asked to determine if the following letter would violate prohibitions against solicitation of business:

Enclosed is a copy of a class action suit which I have filed on behalf of the Plaintiffs listed thereon and ocher mineral owners which I represent. I believe that you own minerals under some of the acreage which is involved in the lawsuit. If this lawsuit is certified as a class action, you will receive after some time a notice from the Court of your right to join the class or be excluded therefrom. It is therefore not the purpose of this correspondence to insist that you make that election at this time. Rather, it is the purpose of this correspondence to inquire whether you have any information which would be supportive of my clients" position; and if so, whether you would be willing to share that information with me.

I would appreciate it if you would read the law suit and let me hear from you in that regard. Sincerely,

Solicitation of business has traditionally been prohibited. DR2-103 (A) states:

A lawyer shall not recommend employment as a private practitioner, or himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer.

ABA Informal Opinion 1469 (July 6, 1981) dealt with a factual situation similar to that of the instant request. An action was filed in state court on behalf of certain homeowner clients alleging that defendant, an institutional lender, was obligated to pay interest on plaintiffs" reserve accounts. It was brought as a class action, but the class had not been certified at the time the attorney for plaintiffs sought guidance in whether to mail a letter to the many people who had expressed support of the action, informing them about certain legislation, the pending litigation, and urging them to consult their own lawyers as to possible advantages in joining the pending litigation. The letter stated expressly that the lawyer would not represent the recipients. The ABA Committee in considering the letter posed the following questions:

(1) Does the fact that the lawyer declines to represent any recipient make the direct communication proper?

(2) If so, is the propriety overcome by the fact that the lawyer and his clients will or may receive indirect benefits if recipients join the litigation as urged by the lawyer in the communications?

In answering these questions the Committee referred to prior opinions which quoted DR2-104 (A) (5):

If success in asserting rights or defenses of his client in litigation in the nature of a class action is dependent upon the joinder of others, a lawyer may accept, but shall not seek, employment from those contacted for the purpose of obtaining their joinder.

The Committee determined that the lawyer had not recommended his own employment was within the rule of DR2-104 (A) (5).

The second question regarding indirect benefit is most important. Benefits to the clients in that opinion request and this one would be shared costs and a lesser chance of an issue becoming moot with more clients. The lawyers stands to gain more money if his efforts are successful; yet, stands the chance of losing money by virtue of encouraging other litigants to seek representation through other counsel. It was determined in I.1469 on the facts presented, that any benefit derived by the lawyer from sending the letters was indirect and incidental to the enhanced position of his clients in the pending litigation. The Committee stated its position was consistent with In re Primus 436 US 412 (1978) where:

(1) the purpose of the communication was to inform the recipients of lawful means of vindicating their legal rights;

(2) the information was conveyed by letter rather than through in-person communication;

(3) the solicitation is generally non-fee generating; and

(4) no undue influence, overreaching, misrepresentation or invasion of privacy would occur.

The Mississippi State Bar Ethics Committee finds the purpose of the instant letter to be acquisition of information which would be beneficial to his clients' suit. The Committee is further of the opinion that any indirect benefits of the letter to the lawyer are incidental and that the letter generally conforms to the guidelines of DR 2-104 (A) (5) and the Primus case.

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