BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 2009-01
(Inquiry No. 793 )
Duty to report misconduct of another attorney—Attorney’s responsibility to report an illegal solicitation.
Inquiring attorney reports having observed patterns of conduct suggesting that certain attorneys, and others acting on their behalf, systematically solicit legal representation from criminal defendants at various stages of the arraignment process. Inquiring attorney asks whether he is obligated to report the observed conduct to the appropriate disciplinary authorities if these methods are not permitted under the Rules of Professional Conduct. Rule 8.3 of the Rules of Professional Conduct provides that, [a] lawyer who knows that another lawyer has committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation. A “known” violation denotes actual knowledge of the facts forming the basis for the misconduct. Rule 8.3 is discretionary only to the extent that it leaves the reporting of insubstantial offenses to the judgment of the attorney who has witnessed the conduct. However, the Rule mandates the reporting of substantial offenses. Substantial offenses are those that “a self-regulating profession must vigorously endeavor to prevent.” Rule 7.3 generally prohibits in-person or direct solicitations; as well as indirect solicitations involving coercion, duress or harassment, or under conditions in which the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer. These forms of solicitation have been historically condemned by the Bar over concerns that exploitative solicitation practices may press individuals in vulnerable situations into ill considered or inappropriate legal representations. Direct solicitation of business by or on behalf of an attorney is also prohibited by Judiciary Law § 479. Judiciary Law § 482, likewise, makes it unlawful for an attorney to employ any person for that purpose. Both violations are chargeable as misdemeanor offenses under Judiciary Law § 485. Here, the patterns of solicitation identified by the inquiring attorney are of the kind directly prohibited by Rule 7.3. Inquiring attorney is therefore obligated to bring these violations to the attention of the appropriate disciplinary authorities for further investigation and, if warranted, disciplinary action.
Judiciary Law § 479
Judiciary Law § 481
Judiciary Law § 485
The inquiring attorney reports having witnessed the following patterns of conduct by attorneys soliciting the representation of criminal defendants held or presenting for arraignment in Nassau County District Court:
Solicitation of Clients in Holding Cells: It is represented that a group of private attorneys customarily enter holding cells, under the pretext of visiting a client, to engage in “high pressure sales pitches” in an effort to induce defendants to hire them for their arraignments. The attorneys will customarily seek out a family member or a friend for payment of the arraignment fee. Then the attorneys will keep the defendant’s paperwork generated from the arraignments and have the family return to the attorney’s office—ostensively for the purpose of negotiating a retainer arrangement for the remainder of the criminal representation.
Solicitation in the Hallways Outside of the Arraignment Part: Inquiring attorney reports frequently observing attorneys roaming the hallways outside of the arraignment part, and approaching distraught family members and friends of the defendants retained in holding cells for the purpose of persuading those individuals to encourage the defendants to retain the lawyers to represent them at their arraignments.
Using the Arraignment Calendar to Facilitate Solicitations: Inquiring attorney reports observing attorneys scouring the arraignment calendar for DWI and domestic violence cases. The attorneys will then approach the defendants to solicit their representation at the arraignments. In such cases, the attorneys will enquire “if anyone is coming to court or if there is anyone the attorney can call to come to court to pay the attorney to get the defendant out of jail (i.e. handle the arraignment).”
Use of Runners: Inquiring attorney reports having observed certain attorneys use “runners” to solicit family and friends outside of the arraignment part to recommend an attorney for the legal representation of the defendant.
Direct Solicitation at Appearance Parts: Inquiring attorney reports regularly observing attorneys directly soliciting representation of criminal defendants who present themselves for arraignment under an appearance ticket.
The inquiring attorney reports that in each of these situations, Legal Aid and/or assigned public defender attorneys (18-B Lawyers) are available to assist the unrepresented as necessary.
The inquiry raises the issue of an attorney’s obligation to report conduct by other lawyers which, although perhaps pervasive and even condoned, nevertheless violates a long-standing ethical tenet against direct solicitation of legal clients. Rule 7.3(a) of the Rules of Professional Conduct (formerly DR 2-103) provides as follows:
(a) A lawyer shall not engage in solicitation:
(1) by in-person or telephone contact, or by real-time or interactive computer-accessed communication, unless the recipient is a close friend, relative, former client or current client; or
(2) by any form of communication if:
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(iii) the solicitation involves coercion, duress or harassment;
(iv) the lawyer knows or reasonably should know that the age or the physical, emotional or mental state of the recipient makes it unlikely that the recipient will be able to exercise reasonable judgment in retaining a lawyer.
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Subsection (b) of the Rule defines solicitation as:
. . . any advertisement initiated by or on behalf of a lawyer or law firm that is directed to, or targeted at, a specific recipient or group of recipients, or their family members or legal representatives, the primary purpose of which is the retention of the lawyer or law firm, and a significant motive for which is pecuniary gain.
Subsections (c) through (i) of the Rule require the filing of advertising solicitations with the appropriate attorney disciplinary committee or judicial department, and also place restrictions on permitted solicitations.
This inquiry identifies five (5) distinct patterns of conduct involving the direct solicitation of clients under circumstances that threaten to exploit the client’s vulnerability and impaired decision making. Direct solicitations of criminal defendants in holding cells, at appearance hearings, or through concerned friends and relatives, evoke sales tactics more appropriate to a market place than the halls of justice. And while attorneys are under an obligation to make legal services available—especially for those most in need of legal representation—the availability of legal aid and public defender programs in each of these environments diminish, if not negate, any justification for these tactics.
Comment  to Rule 7.3 advises that in-person solicitations are historically disfavored by the Bar because of the danger posed to potential clients. As an example, the comment advises that, “in-person solicitation poses the risk that a lawyer, who is trained in the arts of advocacy and persuasion, may pressure a potential client to hire the lawyer without adequate consideration.” It seems to this Committee that, under the circumstances described in the inquiry, the concerns expressed in the Comment are a very real danger.
Rule 8.3(a) of the Rules of Professional Conduct provides that:
A lawyer who knows that another lawyer has committed a violation under the Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness or fitness as a lawyer, shall report such knowledge to a tribunal or other authority empowered to investigate or act upon such violation.
Comment  of the Rule counsels that, “self-regulation of the legal profession requires that members of the profession initiate disciplinary investigation when they know of a violation of the Rules of Professional Conduct. . . . An apparently isolated violation may indicate a pattern of misconduct that only a disciplinary investigation can uncover. Reporting a violation is especially important when the victim is unlikely to discover the offense.” Rule 1.0(h) instructs us that where the terms “knowingly,” known,” “know,” or “knows” are used in the Rules, they denote an “actual knowledge of the fact in question”; although, “[a] person’s actual knowledge may be inferred from the circumstances.” It is important, therefore, that the reporting attorney has an actual knowledge of the facts forming the basis for the misconduct, and not simply a suspicion that misconduct of a kind prohibited by the Rules of Professional Conduct has occurred.
Comment  further advises that, “[t]his Rule limits the reporting obligation to those offenses that a self-regulating profession must vigorously endeavor to prevent. A measure of judgment is therefore required in complying with the provisions of this Rule. The term ‘substantial’ refers to the seriousness of the possible offense and not to the quantum of evidence of which the lawyer is aware.”
The Committee believes that each pattern of conduct cited in the inquiry constitutes misconduct of a substantial degree and, consequently, must be reported to a tribunal or other authority empowered to investigate the conduct. The prohibition against direct solicitation of clients—particularly under the circumstances described—is not an insubstantial violation of professional ethics. Judiciary Law § 479 makes it unlawful for any person, including the attorney himself, to directly solicit legal business or an agreement to perform or render legal services. Judiciary Law § 482 prohibits an attorney from employing any person for that purpose. Violation of either provision is a misdemeanor offense under Judiciary Law § 485. Accordingly, the Committee concludes that it is the obligation of an attorney observing any of the practices described in this Inquiry to report such misconduct to the tribunal, a duly authorized grievance committee, or any other authority empowered to investigate or act upon the violation.
An attorney who observes a direct solicitation of legal representation of a criminal defendant under the various scenarios described in this inquiry, has an obligation under Rule 8.3 to report the misconduct to the tribunal or other authority empowered to investigate or act upon the observed violation.
[Approved by the Full Committee on November 18, 2009]