Ethics Opinon 1973-5

February 15, 1973

SUBJECT: INDIRECT ADVERTISEMENT AND SOLICITATION

I
QUESTION PRESENTED

What is the propriety of a college which trains legal secretaries and medical assistants using the name and picture of an attorney indicating that the attorney is a part-time faculty advisor or legal advisor of such college?

II
SUMMARY

There are no prohibitions in the Canons that would prevent the attorney from allowing his picture and name to be used so long as he is identified as a faculty advisor and not as an attorney.

III
STATUTES AND CANONS

Canon 27 of the American Bar Association provides in part:

"It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employments such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other like self-laudation, offend the traditions and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper . . ."

It will be noted that the Canon is not stated in the positive, but is stated in the negative. In accordance with this type of statement of the Canon, all such advertising is prohibited unless specifically excepted. Thus, the basic underlying philosophy of Canon 27 is one of reluctance to allow any type of advertising.

IV
OPINIONS

In Formal Opinion No. 285 of the Committee of Professional Ethics and Grievances of the American Bar Association, where a law firm was prohibited from permitting a manufacturer's association for which it was counsel to list the firm name on the association's letterhead or in its periodic bulletin to members, the committee stated that:

"Each case must turn on its own facts. In cases where there is any doubt the question should be resolved against the propriety of such specifications."

There appears to be no prohibition per se of an attorney allowing his picture to be used, along with an identification of the attorney as a lawyer so long as it does not directly or indirectly advertise or praise the lawyer. See Informal Opinion No. 384.

Nor is solicitation of students per se by an attorney improper, such as solicitation of students of a law school. See Informal Opinion No. 52.

Further, law schools, fraternities, service clubs and bar associations may publish rosters, registers, catalogs or lists of their members with their names, addresses and occupations, which are not law lists, where no charge is made for the listing and there is no suggestion available for professional employment, or to promote, solicit, or secure professional employment. And the Committee in Informal Opinion No. 921 stated a lawyer may serve as a consultant to a social welfare agency and be listed as such in public reports of the agency.

The above appears to be the outer perimeters to which the Committee was willing to go in allowing the use of pictures and names in various publications.

The prohibitions of the use of a lawyer's name in connection with publications have been much greater than those of the allowances. The Committee's Informal Opinion No. 704 held it improper to use a lawyer's name in newspaper advertisements circulated to the general public. The Committee's Formal Opinion No. 285 stated it was allowable to include an attorney's name in the annual report to the shareholders of the corporation but it was improper to use the name on a letterhead of the corporation, since the letterhead was circulated to the general public. Formal Opinion No. 100 stated that the attorney may permit a bondholders' committee to include a reference that he was counsel for the committee in a notice informing other bondholders of the committee's formation, if such use of his name was actuated by a bona fide purpose to give information to other bondholders, rather than advertising the attorney's services. The rationale of the decision was that the bondholders should be entitled to know who was giving the committee the legal opinions involved. Finally, in Formal Opinion No. 107 the Committee held it improper to publish a Christmas greeting if the person who published it identified himself as an attorney.

Research shows that there is apparently no prohibition in any of the foregoing opinions if the individual does not identify himself as an attorney. Furthermore, several opinions have stated that if an attorney does not practice law, but only teaches law, there is no prohibition against his name being used in publications since he could not be soliciting clients. And, in Informal Opinion No. 446, it was held that the full-time general counsel for a training association may be listed on the association's letterhead, but it would be improper for a part-time general counsel to be so listed.

V
ANALYSIS

In accordance with Opinion 285, the question should be decided on whether it is clearly not a violation of the Canons to allow such picture and name to be circulated, rather than whether it may or may not be a violation. In other words, if it is clearly not a violation, then the circulation of the name and picture is proper. If there is any question as to whether or not it is a violation, then it is not proper.

The conclusions to be drawn from the above cases are as follows:

(1) Canon 27 is to be interpreted very strictly, and a questionable advertisement is more likely to be turned down than allowed;

(2) there is no prohibition for an attorney to be included on a bona fide law list or catalog of a law school so long as it is not promoting, soliciting or securing professional employment;

(3) it is improper for an attorney, except under special circumstances, to allow his name to be circulated in a brochure to the general public, if he is identified as an attorney;

(4) it is proper for an attorney to allow himself to be listed as counsel for a business or association if he is full-time counsel, but is improper if he is part-time counsel.

This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

EDITOR'S NOTE: The Committee reviewed this opinion on 9/6/76 and determined that the conclusion is still valid. Canon 27 refers to the Canon of Professional Ethics which were followed prior to 1970; the subject is now covered by Canon 2 of the A.B.A. Code of Professional Responsibility.

 

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.