86 N.J.L.J. 729
December 26, 1963
Stirring up Litigation
A large number of buyers of new homes in a development formed
an association to promote the resolution of their individual
contractual claims against the builder. The claims, though small
and difficult to litigate, in the aggregate constituted a
substantial amount. Common questions of law and fact were involved.
Thus it appeared more feasible to litigate through one attorney.
The chairman of the group was dispatched to obtain advice on
available remedies. The attorney he consulted directed him to
obtain an opinion poll of all homeowners. The attorney then
concluded that before starting a damage suit he should be furnished
with a "specific consent" as to each individual claim; and he
prepared a "mimeographed form of retainer" for the group chairman
to circulate. Then, a substantial number of the owners concluded
that they did not have any claims; and, they declined to sign the retainers (although all 84 owners had previously filled out a list of complaints).
The attorney now asks the Committee, whether or not, under the Canons of Professional Ethics, Canons 16, 27 and 28, it is improper for him to represent the various members of the association wishing to pursue their contractual claims, and, whether or not "continuance with this mode of procedure will conflict with any of the Canons mentioned."
It is the opinion of the Committee that the attorney should not accept the retainers proffered to him by those claimants who were solicited. This does not affect his continued representation of the individual who came seeking his advice in the first place. Solicitation by an attorney of strangers who are in the same class and have interests identical with those of his client is improper. A.B.A. Comm. on Professional Ethics and Grievances, Opinion 111 (1934). It is generally disapproved because it tends to stir up litigation. N.Y. County Lawyers Ass'n., Committee on Professional Ethics, Opinion 47-V (1914), Canons of Professional Ethics, Canons 27 and 28. Although the interest of any one of a group of claimants may be enhanced if others select the same attorney, the solicitation of the others tends to encourage some to join who might not otherwise seek redress. The minor claimant may thus become a tool to obtain another with a more substantial claim, See discussion in Drinker, Legal Ethics 251-252 (1953); Ass'n. of the Bar, City of New York, Committee on Professional Ethics, Opinions 586 (1941) and 717 (1948). At common law, stirring up litigation constituted the crime of maintenance, especially aggravated where the perpetrator was an attorney. Drinker, supra at 63.
Here the facts submitted to this Committee do not appear to involve direct solicitation by the attorney; nevertheless, his conduct in directing the opinion poll and in preparing the retainer
or "specific consent" does not clearly exclude his participation in the solicitation. As the inquiry suggests, since the procedures are improper for the attorney, Canon 16 applies and the attorney should dissuade his client from the solicitation.