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OBA Ethics Counsel

Ethics Opinion No. 169

Adopted June 10, 1953

QUERY

The following inquiry was received:

"I have recently started my practice of Law here in _____________ and was wondering if it might be proper for me to run an announcement that I had started my practice of Law.

If it is not unethical to run such an ad, I would also like to know what would be considered to be a proper size for such an ad and how long it should run and any other pertinent information."

ANSWER

In Opinion 164 adopted January 14, 1953 it was said that the running of an ad soliciting the preparation of income taxes is a violation of Canon 27. In Opinion 155 adopted November 29, 1951 ads giving the name, designation as attorney-at-law, address and phone number was condemned.

While this question has been answered in prior opinions, the misunderstanding with regard to the question is apparently so general as to require a review thereof.

Canon 27 reads 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 employment 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.

Publication in reputable law lists in a manner consistent with the standards of conduct imposed by these canons of brief biographical and informative data is permissible. ..."

From the above quoted portion of Canon 27, we see that the customary use of simple professional cards is permitted. It is also proper for certain data to be carried in reputable law lists.

Canon 27 was amended to read as set forth above in 1937. Prior to the amendment of 1937 the Canon read in part as follows:

"... The publication or circulation of ordinary simple business cards, being a matter of personal taste or local custom, and sometimes of convenience, is not per se improper. ..."

Attention is called to the fact that the language just quoted was omitted from the present draft of Canon 27, and even before the 1937 amendment, the Board of Governors of the Oklahoma Bar Association in Opinion #50, dated February 24, 1933, see Vol. 1, Advisory Opinions of The Board of Governors, page 99, answering the inquiry as to the propriety of running the name, address, telephone number and specialization in the telephone directory and in the newspaper, it was said:

"That in Oklahoma there is no defined local custom permitting the insertion of such a card in the advertising columns of newspapers, and that the publication of such business cards is not, therefore, sanctioned by local custom, and that being so, the publication of such cards in the newspapers would be contrary to the provisions of Rule 29."

So we see from the above opinion that there was no local custom prevailing in Oklahoma, therefore the insertion of such a card in a newspaper was never approved in Oklahoma.

The American Bar Association in Opinion #276, dated September 20, 1947, considered this same question and held that since the 1937 amendment, that the omission of or reference to "publication" or "local custom" disclosed an intent to withdraw the previous sanction of any local custom permitting such an obvious form of advertisement. The opinion reads in part:

"... In view of the substitution by the 1937 amendment of the words 'customary use' of simple professional cards for 'publication or circulation' under 'local custom', and in view of the specification of exactly what only could be included in law lists the rule has been changed and that under the 1937 amendment the 'customary use' referred to was only such use as had been recognized by GENERAL custom as distinguished from LOCAL custom. Further that there was no general custom sanctioning publication anywhere save in a law list or legal directory."

The Oklahoma Bar Association has never sanctioned the use of the publication of such cards. See the following Opinions in Vol. 1 of Advisory Opinions of the Board of Governors: Opinion 35, page 78; Opinion 74, page 138; Opinion 92, page 162; Opinion 98, page 173; Opinion 105, page 181; Opinions 120, 124, 126 and 129 of the 1937 Year Book; Opinions 132 and 133 of the 1938 Year Book.

Canon 27 was amended in 1940, 1942 and 1943; however, the amendments are slight and do not affect the principle change above noted and the Canon although providing "that the customary use of simple professional cards is permissible" does NOT permit the publication of such cards in a newspaper, and does not permit their publication except in approved law lists, as set out in said Canon.