OPINION 309
January 1966

SOLICITATION STIRRING UP LITIGATION DIVISION OF FEES COUNTY ATTORNEYS. When a County Attorney is consulted in his official capacity about a criminal or civil matter, it is unethical for him to offer his services as a private lawyer; he may ethically refer the complainant to another lawyer; but he cannot accept a referral fee.

Canons 24, 25, 31.

Questions

1. If an individual were to go to the County Attorney's Office with a case that was not a matter which that office could handle, would it be a violation of the Canons of Ethics for the County Attorney, or one of his Assistants, to inform the individual that he could not represent him in his official capacity, but that he would undertake to represent him as a private lawyer?

2. Would it be a violation of the Canons of Ethics if, in that same situation, the County Attorney, or one of his Assistants, told the individual that the County Attorney's office could not represent him as such, and then gave him the name of a particular practicing attorney who would be able to help him?

3. In the latter situation, assuming it to be proper, would it be a violation of the Canons of Ethics for the County Attorney, or one of his Assistants, to accept a referral fee from the individual lawyer to whom he referred the man seeking help?

In each of these situations, we have assumed that the individual with the cause of action went to the County Attorney's office with the understanding that, as a taxpayer, the County Attorney's office was available for his use and that the County Attorney's office could properly handle the type of matter involved, and not to retain the individual in the County Attorney's office as a private lawyer.

4. Finally, would it be a violation of the Canons of Ethics if an individual went to the County Attorney's office seeking to file a criminal complaint but was informed that criminal action in the matter would be ineffective and that his civil remedies would better suit his needs, and then the County Attorney or one of his Assistants, either undertook to take the case, or referred it out to one specific lawyer with or without a referral fee, as in the above examples?

Opinion

The above inquiries are answered as follows:

1. Assuming that the individual did not indicate any intention or desire to employ the County Attorney, his offer to represent the individual as a private lawyer would violate Canon 24, which prohibits solicitation. (9-0.)

2. No, under the circumstances stated, simply referring the individual to another practicing attorney would not violate the Canons. But any special arrangement between the County Attorney and the other attorney for referral of cases could involve a violation of Canon 25. (9-0.)

3. Yes, there would be a violation of Canon 31, which permits division of such fees only when based upon a division of service or responsibility. See Opinion 172 (March. 1958). Canon 25 might also be violated as stated above. (9-0.)

4. The above answers would also apply in the situation assumed in the fourth inquiry. (9-0.)