Ethics Opinon 1975-3

I
QUESTION PRESENTED

A local married couple recently graduated from a local law school. Both took the July, 1974 Bar exam. Both passed and have opened an office in San Diego County, California. The San Diego Union-Tribune newspaper has contacted them with a view towards writing a human interest article about them since both went to law school together, graduated together and passed the Bar together. The couple indicates that the article would focus on scholastic background and personal lives. May they ethically give permission to the newspaper for such an article?

II
SUMMARY

Yes, subject to the following conditions:
(1) That the article is not primarily directed to attracting lay clients;
(2) That the article is unsolicited by the attorneys;
(3) That there be no compensation or the giving of anything of value to the representative of the press in anticipation of, or in return for the publicity;
(4) That the article should not contain any professionally self-laudatory statements calculated to attract lay clients;
(5) That the attorney should see to it, so far as possible, that the article, as published, carries out his instructions.
.

III
STATUTES AND CANONS

The following Rules of Professional Conduct of the State Bar of California (effective January 1, 1975) apply:

Rule 2-101. Publicity in General.

(A) A member of the State Bar shall not prepare, cause to be prepared, use or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, "public communication" includes, but is not limited to, communications by means of television, radio, motion picture, newspaper, magazine, or book.

(B) A member of the State Bar shall not publicize himself, his partner, or any other attorney, lawyer or counselor at law as a member of the State Bar through newspapers or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under Rules 2-103 and 2-104. This does not prohibit the following limited and dignified identification of a member of the State Bar as a member as well as by name as long as such identification is not primarily directed to attracting lay clients:

(1) In political advertisements.

(2) In public communications when the name and profession of a member of the State Bar are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

(4) In and on legal documents prepared by him.
Nothing herein contained shall be deemed to prevent the publication in a customary and appropriate manner of articles, books, treatises, or other public communications or of dignified advertisements thereof so long as neither such public communications nor the advertisement thereof are primarily directed to attracting law clients.

(C) Except as provided in these rules, a member of the State Bar shall not solicit professional employment by compensating or giving anything of value to the representatives of the press, radio, television, or other communication medium in anticipation of or in return for publicity, of himself or any other attorney.

Rule 2-104. Recommendation of Professional Employment.

(A) A member of the State Bar shall not recommend employment, as a private practitioner, of himself, his partner or associate or nonlawyer who has not sought his advice regarding employment of a member of the State Bar.

(B) Except as permitted under Rule 2-104(C), a member of the State Bar shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client.

Disciplinary Rule 2-101 of the American Bar Association Code of Professional Responsibility is substantially the same as Rule 2-102 of the State Bar Rules. Also, Disciplinary Rule 2-103(A) and (B) is substantially identical to Rule 2-104 of the State Bar Rules of Professional Conduct..

IV
INFORMAL OPINIONS

A. Informal Opinion C?479 of the American Bar Association.

Informal Opinion C-479 dated October 24, 1961 of the American Bar Association's Standing Committee on Professional Ethics, involved the following question:

"Does a lawyer's release of news items of his activities to a newspaper for publication, unsolicited by the newspaper, constitute unethical conduct?"

The Committee answered the question in the affirmative. After citing Canon 27 of the Canons of Professional Ethics, the opinion went on to quote from Opinion No. 244 where the Committee stated:

"The evil at which Canon 27 is aimed primarily is the employment by those engaged in the profession of law of commercial methods of obtaining business."

The Committee went on to point out that:

"The question propounded assumes that the newspaper does not solicit the proposed news releases, but that the lawyer solicits the newspaper to accept for publication the proposed news material directly portraying the activities of the lawyer, designed to accomplish the ulterior purpose of extolling his good name and virtues to the general public. Such conduct of necessity would constitute a form of public self-laudation designed indirectly to further the professional interests of the lawyer."

Informal Opinion No. 546 dated August 23, 1962 is also pertinent. That opinion considered whether the Informal Opinion previously discussed (C?479 of 10/24/61) was inconsistent with a previous Opinion rendered July 29, 1958, Opinion No. 244. Opinion No. 244, rendered by Mr. Drinker, held essentially as follows:

"I would not regard it as unethical for a lawyer to submit to a newspaper accurate information of public record and not intended or calculated primarily to extol the lawyer, relative to litigation in which he is engaged as a lawyer."
Informal Opinion No. 546 pointed out that Informal Opinion No. C-479 assumed that the material voluntarily furnished by the lawyer for publication was designed to accomplish the ulterior purpose of extolling his good name and virtues to the general public. Such purpose vastly differs from that contemplated by the Drinker opinion. Another question raised by Informal Opinion 546 was as follows:

"Would Informal Opinion C?479 be circumvented if a newspaper reporter were to solicit an attorney for news about activities, professional or otherwise."

The Committee pointed out that it could not answer that question in absolute terms. It then went on to state:

"The motive of the lawyer is always the important factor, and such can be judged generally only by the subject matter of the releases, their tone, and the general reputation of the lawyer. Again, the lawyer should not only avoid all aspects of both direct and indirect advertising for professional employment, but also, should avoid suspicion in the premises."

B. Informal Opinion No. 854 of the American Bar Association.

Informal Opinion No. 854 dated May 31, 1965 again considered the subject of unsolicited newspaper publicity. That opinion pointed out that publication of general interest articles is permissible if not intended or calculated primarily to extol the attorney relative to litigation in which he is engaged as a lawyer and that the considerations in measuring the propriety or impropriety of such publicity involved the following:

(1) Whether the article is solicited or unsolicited.

(2) Whether the intent is to extol the abilities of the lawyer.

(3) The extent to which the attorney is consulted for material for the article.

C. Informal Opinion No. 806 of the New York City and County Bar Association.

Informal Opinion 806 dated May 3, 1955 of the Committee on Professional Ethics of the Association of the Bar of the City of New York and New York County Lawyers Association also considered the question of newspaper publicity of a lawyer. The Committee noted in pertinent part as follows:
"A lawyer may with propriety answer questions and volunteer personal or professional nonprivileged data in connection with the preparation of such an article regarding his career, so long as he insists that the article be dignified and in good taste and be written in such a tone as not to imply to the public that it is intended to constitute advertisement for professional employment. He should also see to it, so far as possible, that the article as published carries out his instructions."

The Opinion closed with a quote by Drinker as follows:

"Just where the line should be drawn beyond which it is incumbent for the lawyer to protest it is often difficult to say. In its ultimate analysis the question like many of those involving legal ethics, is one of good faith and good taste."

V
ANALYSIS

From the foregoing Rules and Opinions, it appears that the proposed newspaper article would be proper. However, it should be pointed out that there are certain conditions to this propriety. They include the following:

(1) That the article is not primarily directed to attracting lay clients;

(2) That the article is unsolicited by the attorney;

(3) That there be no compensation or the giving of anything of value to the representative of the press in anticipation of, or in return for the publicity;

(4) That the article should not contain any professionally self-laudatory statements calculated to attract lay clients;

(5) That the attorney should see to it, so far as possible, that the article, as published, carries out his instructions.

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

 

 

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.