Ethics Opinion

Opinion No. 75-1

January 1975

Summary: It would be proper for a lawyer to write to each of his former clients for whom he has handled a residential real estate transaction, to call attention to the 1970, 1973 and 1974 amendments of G.L. c.188, S1, which permit an increase in the value of an estate of homestead from $4,000 to $24,000, and to recommend that the client, if a householder who has a family, establish such an estate by declaration. Such letters also may properly be written to other persons whom the lawyer reasonably believes to be regular clients.

Facts: A firm of lawyers engaged in the practice of law proposes to write to each of its clients for whom it has handled a residential real estate transaction in the last three years and recommend that the client by declaration establish an estate of homestead in his or her residence pursuant to G.L. c.188, S1. The statute has recently been amended to provide "A householder who has a family shall be entitled to acquire an estate of homestead to the extent of twenty-four thousand dollars." The firm also proposes to make the same suggestion to clients of the office who own and occupy residences where it has handled other matters for the client, but not a real estate conveyance.

Discussion: There are certain advantages which a householder who has a family may secure by making a declaration of an estate of homestead under G.L. c.188, S2. The maximum value of such an estate was limited to $4,000 prior to 1970 under G.L. c.188, S1, but amendments in 1970, 1973 and 1974 have increased this to $24,000. These recent amendments would not be likely to come to the attention of laymen, unless advised by a knowledgeable lawyer.
Under Disciplinary Rule DR 2-103(A), a lawyer may not "recommend employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer."
However, the Canons of Ethics recognize that "The giving of [unsolicited] advice that one [a layman] should take legal action could well be in fulfillment of the duty of the legal profession to assist laymen in recognizing legal problems," and should not be prohibited, if properly motivated. Ethical Consideration EC 2-3.
Disciplinary Rule DR 2-104(A) specifies the circumstances under which "a lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action" may properly accept employment resulting from that advice. The relevant exception to that rule's blanket prohibition of accepting such employment is found in Disciplinary Rule DR 2-104(A) as follows: "A lawyer may accept employment [in such cases] by a friend, relative, former client (if the advice is germane to the former employment) or one whom the lawyer reasonably believes to be a client." (The proper definition of present "clients" is spelled out in EC 2-4 as "regular clients.")

Permission to publish granted by the Board of Delegates, 1975. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.