SOLICITATIONCONFIDENCES OF A CLIENTIt is unethical for a member to purchase, to sell, or to advertise for sale a law practice with "established clientele."
Canons 24, 34.
Upon the death of an attorney, his heir, who is not a lawyer, desired to dispose of the law library, office equipment and unexpired office lease, and submitted for publication in the Texas Bar Journal the following advertisement.
"Aggressive, competent, and reliable lawyer needed to take over practice of_________ of _________. Firm operated under name of _______and ______ for over 40 years. Large clientele, and good standing in community and area. Deal includes everything, library, location, and secretary. Contact_______ for interview."
Is such an advertisement proper under the Canons of Ethics?
The legal profession has in numerous past opinions condemned the sale, or the advertisement for sale, or the purchase of a law practice including good will and established clientele. ABA Opinion 266 states: "The good will of the practice of a lawyer is not, however, of itself and asset, which either he or his estate can sell." Opinion 266, further, quotes from Opinion 109 of the Ethics Committee of the New York County Lawyers' Association: "Clients are not merchandise. Lawyers are not tradesmen. They have nothing to sell but personal service. An attempt, therefore, to barter in clients, would appear to be inconsistent with the best concepts of our professional status." Another opinion--No.16 of the Ethics Committee of the New York City Bar Association--says that an advertisement of the sale of a law practice with "established clientele" is improper.
The advertisement in the inquiry was, as stated, submitted to the Bar Journal by the heir of a deceased lawyer, which heir is not a lawyer and, therefore, not subject to the decisions of this committee. Such heir's transactions, however, will necessarily be conducted with lawyers, who are guided by the opinions of the Ethics Committee and who, according to the Canons, would be acting unethically if they bought or sold a law practice in the manner o the proposed advertisement, or if they accepted such advertisement for publication in the Bar Journal.
It is the committee's opinion that the purchase or sale of a deceased or retired lawyer's law practice, including good will and an established clientele, would result in a situation in violation of Canons 24 and 34. Canon 24 prohibits solicitation and would, therefore, preclude a lawyer from purchasing a law practice with established clientele because such purchase upon such conditions would unavoidably involve the solicitation of these clients to continue their business with the purchaser. It would likewise preclude a lawyer from selling a law practice, including the clients, because such a sale would imply that then seller would urge and solicit the established clients to give their business to the purchaser. Such solicitation, if engaged in, would inevitably result in giving a preferred position to the highest obtainable bidder for the law practice, which is not the basis on which an attorney should be obtained. (ABA Opinion 266). Also involved in the purchase or sale of an "established clientele" would be the question of confidence of clients. Canon 34 states that "the duty to preserve his clients' confidences outlasts the member's employment," and ABA Opinion 266 states that "Every lawyer's files contain confidential information from clients which neither he nor his heirs or personal representatives may properly disclose without the client's express permission."
Upon the death or retirement of a lawyer, it has been held proper to advertise for sale his library, office equipment, and unexpired lease. It is suggested that such an advertisement could properly read:
"For sale: Law library and office equipment of _______ of _________, Texas. Purchaser can take over established office lease if desired. Experienced secretary also available. Good location for competent, reliable lawyer. Contact _______ for further information." (9-0.)