November 26, 1974
Ethics Opinon 1974-21.5
SUBJECT: FREE SERVICES; CONFLICT OF INTEREST; SOLICITATION
A bank refers a customer to an attorney who provides the customer with a free will and trust. Is it ethical for an attorney to provide such services?
While the above facts are insufficient to frame a precise issue, it appears that such conduct is unethical because of a conflict of interest or because of the potential abuse for unauthorized solicitation of professional employment.
STATUTES AND CANONS
Rule 3 of the Rules of Professional Conduct of the State Bar of California pertains to the solicitation of professional employment. The Code of Professional Responsibility, Ethical Consideration 2-8 states: "A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations." The Code of Professional Responsibility, Canon 5, states "A lawyer should exercise independent judgment on behalf of a client."
A lawyer performing services for a bank as in this situation is arguably an employee or at least has a relationship with the bank that raises ethical considerations.
In Formal Opinion No. 10 it was held that an attorney employed by a trust company could not also represent a customer of the trust company in work relating to trust matters.
Formal Opinion No. 122 held: "An attorney may not draft legal documents at the request of a trust company and without charge to the client designating the trust company as executor or trustee with the understanding that he will be retained as attorney for the executor or trustee." In the above opinion, the quid pro quo was the lawyer's future employment as attorney for the executor or trustee while in the present situation the attorney is apparently hopeful of future referrals on which he can build his practice.
INFORMAL OPINION NO. 831
In Informal Opinion No. 831 the Committee held that the employee, attorney, or an educational institution could not personally draft the wills of prospective donors nor obtain the services of another attorney to provide this service.
If the lawyer is obligated to name the bank as trustee or executor, then the lawyer is laboring under a conflict of interest for failing to use his independent judgment. This is a violation of Canon 5. If the lawyer is providing free legal services for a bank's customers with the expectation of receiving subsequent referrals, this alone is a violation of the Code of Professional Responsibility, EC 2-8.
In Formal Opinion No. 10 and No. 122 and in Informal Opinion No. 831 the Committee consistently held that a lawyer's responsibility is direct to the client and that he cannot represent two potentially adverse interests.
It is this writer's opinion that the above described conduct of the attorney is unethical.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The Committee reviewed this opinion on October 13, 1976 and found that the conclusion is valid based upon the assumptions made by the writer. Also note that effective 1/1/75, Rule 3 is found in Rules 2-104 and 3-101 through 3-103. The Formal and Informal Opinions cited were issued by the American Bar Association.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.