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OBA Ethics Counsel

Ethics Opinion No. 142

Adopted May 27, 1938

The Board is in receipt of the following request for an Advisory Opinion:

"Request is hereby made for an advisory opinion upon the following question:

Under Rule 42, it is not improper for an attorney to write newspaper articles for publication giving information upon the law. Under Rule 22, it is improper for an attorney to give newspaper interviews concerning pending litigation anonymously.

1. Would there be any impropriety in an attorney writing for daily newspaper publication, comment upon decisions of appellate courts, which have become final, and have been published in the reporter systems, pointing out how the rights of the layman are affected by the holding of such decision?

2. Presuming the above to be proper, and that no offer or attempt to advise inquirers is made, contrary to Rule 42, would it be improper for the writer to use his name as author of such article, or a nom de plume?

3. Would it be improper to comment upon decisions of the Supreme Court which have been handed down, before the mandate has been sent down? In other words, before time for filing petition for rehearing, or before such petition has been finally passed upon?"

In response:

The Board is of the opinion that, as stated in paragraph numbered 2 above, if no offer or attempt to advise inquirers is made, and if the proposed articles and publication thereof are so worded and published as to preclude any implication of advertising, that then the procedure outlined in paragraph numbered 1 is not improper. See Opinions Nos. 45 and 108. If the articles are signed the writer should use his own name and not use a nom de plume.

It is the further opinion of the Board concerning paragraph No. 3 above that until decisions of the Supreme Court have become final they are still within the class of "pending" litigation defined in Rule 22; and that comment thereon would be premature and improper.