Legal Ethics Opinion 1501

Non-Lawyer--Recommendation of Professional Employment: Employer
of Former (Non-Lawyer) Client After Client Has Referred New
Clients

You have presented a hypothetical situation in which Attorney
represented a client whose cause of action was settled out of
court.  The former client began a support group for those people
allegedly injured in the same fashion as he was injured.  The
former client, because he was pleased with the representation,
and without consideration from the attorney, proffered the
attorney's name to those in the support group wishing to pursue a
potential cause of action. 

You indicate that Attorney now wishes to hire the former client
to organize and manage the cases of those clients who are
pursuing a cause of action similar to that of the former client. 
Some current clients whose cases would be monitored by the former
client were referred to Attorney by the former client.  Full
disclosure would be made to all clients regarding the past legal
relationship between Attorney and the former client/potential
employee.

You have asked the committee to opine whether, under the facts of
the inquiry, the employment of a former client by Attorney to
manage and organize the cases of current clients, some of whom
were referred to Attorney by the former client, and after full
disclosure of the past legal relationship between Attorney and
potential employee, violates any ethical standard in the
Commonwealth of Virginia.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DR 3-104 which delineates the permissible
activities and required supervision of nonlawyer personnel; and
DR 2-l03(D) which prohibits a lawyer from compensating a person
or organization to recommend or secure his employment by a
client, or as a reward for having made a recommendation resulting
in his employment by a client. 

The committee has earlier opined that a lawyer who has formerly
represented and concluded settlement of claims in a wrongful
death matter may subsequently represent another individual in a
substantially related matter against a third party who predent's
demise and whose conduct is the basis for the prospective
client's claim.  LEO #648.  

The committee assumes that the potential employee is a nonlawyer
and thus the committee cautions that Attorney is responsible for
strict compliance with the provisions of DR 3-104.  Specifically,
the committee is concerned with the function described as
"manag[ing] and organiz[ing]" cases by the potential nonlawyer
employee.  The committee reiterates the exhortations of the
Disciplinary Rule, which require that the nonlawyer be under the
direct supervision of a licensed attorney, that the relationship
with the client is the responsibility of the attorney, and that
the attorney not permit the nonlawyer employee to communicate
with clients or the public without first disclosing his nonlawyer
status.  Furthermore, the committee consistently has been of the
opinion that, when read together, the two applicable disciplinary
rules, DR 3-l04 and DR 2-l03, do not intend for solicitation of
employment on behalf of the lawyer to be a duty which may be
delegated to a nonlawyer employee, as a routine element of the
position.  In addition, the committee cautions that employment of
the former client must not be predicated upon any promise of
"bonus" or additional compensation in exchange for her prior or
subsequent securing of clients for the attorney.  

Finally, should such solicitation of employment be related to
personal injury or wrongful death actions, and should such
solicitations be carried on in-person, the constraints of DR
l-l02(A)(2) would preclude Attorney from utilizing the nonlawyer
employee to circumvent the constraints of DR 2-l03(F).  See LEO
#1290; see also LEOs #l068 and #l295.   

Committee Opinion
December 14, 1992