Opinion 2000-12
(December 2000)

Inquirer is presently a 50% shareholder in a firm practicing in New York and Pennsylvania.  W is the other 50% shareholder.  The firm does complex medical malpractice work for plaintiffs and has approximately 50 active matters in Pennsylvania.

The firm is dissolving.  W has a permanent reading disability and some memory impairment as a result of several strokes.  Once the firm is dissolved both inquirer and W intend to solicit the present clients of the firm.  Inquirer knows that W will be suggesting as part of the solicitation to the clients that he (W) will be handling their cases.  However, inquirer also knows that W does not intend to inform the clients of his disability, his strokes, or the fact that he has not been involved in handling cases since his strokes.  In view of these facts, inquirer asks whether he has an obligation to disclose to the clients W's disability.  Inquirer also expresses a concern that W's conduct in soliciting clients violates Rules of Professional Conduct 7.1 and 8.4(c); he also cites Rules 1.16(a)(2) and 1.1, which presumably will be violated if W succeeds in obtaining the representation of any of the firm's present clients.  Citations of the Rules of Professional Conduct will hereinafter be referred to as "Rule" or "Rules."

Under the facts that inquirer has asked the Professional Guidance Committee to assume, the inquirer may have a Rule 8.3(a) duty to inform the Disciplinary Board of the Pennsylvania Supreme Court of W's proposed conduct.  The inquirer should also consider a direct approach to W urging that W not go forward with a solicitation of the firm's clients which includes an indication that W would handle their cases in any substantive way.  In view of the Committee, there does not, however, appear to be an obligation under the Rules to inform the clients to be solicited of W's disability and his consequent inability to personally handle their matters.

Rule 1.1 may permit such disclosure to the clients, as may Rules 1.3 and 1.4(a) and (b), but none of the just-cited Rules appear to contemplate the situation posited by inquirer, and inquirer would be risking action against him by W on various legal theories if inquirer engaged in the proposed disclosure to the firm's clients.  The Committee recognizes that under Rule 5.1(c)(2), inquirer may have some responsibility for violation by W of the Rules, but under the facts as stated, that responsibility could be discharged by urging that W desist from misrepresenting his ability to serve the firm's clients, and informing the Disciplinary Board if W fails to comply with Inquirer's request.  If, in the process of remonstrating with W, and proceeding with the Disciplinary Board, inquirer observes that W's violation of the Rules persist, a direct approach to clients, carefully worded to reflect demonstrable facts and to avoid discouraging the clients from selecting a firm capable of handling their matters which might employ or have a relationship with W, may be permitted under the Rules.
The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.