Summary: In an effort to secure acceptance by local banks of a policy of "open title examination" (the acceptance by all local banks of title opinions of members of a local bar association representative of the general bar of the geographical area in which it exists as to real estate which their clients are offering the local banks as loan collateral), the local bar association:
(1) May properly appoint a committee to discuss the matter with local banks.
(2) May properly cooperate with the press and other media so that action of the association receives dignified publicity and may engage in educational programs among its members to explain and promote its policies.
(3) May not properly engage in any boycott or sanction or otherwise attempt to intimidate banks which fail to cooperate with the policies of the local bar association.
(4) Should not adopt any policy, if there is a reasonable doubt as to its propriety, and should resolve ethical questions in advance either through study, or consultation with the state or national bar association.
Facts: A local bar association at a properly called meeting voted to establish a committee to meet with and seek to obtain the acquiescence of local banks to a policy of accepting the title opinions of members of the association whose clients desire to borrow from the banks and give real estate mortgages as security. We understand that at least one of the local banks has a policy of accepting title opinions from only one firm and that as a consequence borrowers from that bank who desire to be represented by attorneys of their choice are required to pay for the services of their own attorney as well as the attorney engaged by the bank.
The local bar association has asked a series of questions which are answered in substance as set forth in items (1) through (4) of the above Summary.
Discussion: DR 2-103 prohibits a lawyer from recommending the employment of himself or his partner or associate to a non-lawyer and further prohibits a lawyer from cooperating with an organization that so recommends. There are several exceptions to this disciplinary rule. The exception with particular relevance is DR 2-103(D)(4) which exempts the legal service activities of "A bar association representative of the general bar of the geographical area in which the association exists." EC 2-1 states that lawyers are ethically obliged "to assist in making legal services fully available." A local bar association may responsibly determine that it is in the public interest to attempt to persuade financial institutions to accept title opinions of responsible attorneys who represent persons desiring to borrow money. By such a means legal services may be made more available and at a more moderate cost to the public.
(1) We therefore conclude that appointment of a committee of a local bar association "representative of the general bar of the geographical area in which the association exists" to discuss the matter with local banks is proper.
(2) The activities of a bar association may be publicized to the press and other media so long as such action does not constitute solicitation, stirring up of strife and litigation or publicity for individual lawyers (ABA Opinion 121). A bar association may engage in institutional and educational advertising (ABA Opinion 307). Therefore, the activities of the local bar association may be publicized in the press and other media and the association may engage in educational programs among its members to explain and promote its policies provided that the inhibitions previously referred to are observed.
(3) It would be improper, however, for a bar association to encourage its members, or for its members to encourage their clients, to refrain from doing business with banks which did not accede to the bar association's policies. Also it would be inappropriate for the bar association to take action designed to intimidate dissenting banks, such as gratuitiously investigating the rights of depositors in the election of bank officials or seeking to determine whether such banks are in violation of antitrust laws or otherwise restraining trade. Such activity demeans the dignity of the profession and may constitute the common law tort of wrongful interference with advantageous business relations.
(4) In this area, which involves considerations of restraint of trade and of interference with the banks' free choice of attorneys, we believe that no bar association should adopt any policy if there exists a reasonable doubt as to its propriety. If ethical questions can fairly be foreseen to be raised by any particular policy, we would urge that they be settled in advance, either through study of the questions at the local level, or by consultation with a state or national bar association.
Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.