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OBA Ethics Counsel

Ethics Opinion No. 187

Adopted July 8, 1957

The Central Committee of the Oklahoma Bar Association has submitted to its Legal Ethics Committee the following inquiry:

INQUIRY

Is it permissible for an attorney to have a picture of himself taken and then permit the publication of the picture in a local newspaper?

OPINION

Since the question propounded does not reveal the purpose for which the photograph was procured by the attorney nor the purpose for which it was published in the newspaper, it is not subject to a categorical answer. Depending on the circumstances, such action could be perfectly proper, and under other circumstances it could be so reprehensible as to be grounds for the most severe disciplinary action. Canon 27 of the Canons of Professional Ethics of the American Bar Association provides in part:

"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;"

It would be ridiculous to interpret this Canon to mean that in all cases it would be improper for an attorney's photograph to appear in a newspaper. Only when the publication of such photograph tended either directly or indirectly to advertise such attorney's profession, could it be considered as objectionable. Certainly, an attorney who had been awarded an honor of any nature as a citizen, or who was performing some unusual civic duty, such as conducting a charitable drive, would be entitled to recognition, and if such award or activity was of public interest, the fact that he was a member of the legal profession should not prevent him from receiving such recognition or publicity. Only if the purpose or intent of the publication of the photograph could be considered as an attempt to solicit business, or hold such attorney out as an especially qualified member of the legal profession, could it be considered offensive. Therefore, if the publication of such photograph was because of some special service to the community that the lawyer may have performed, or in connection with his participation in some civic project, the opinion of this Committee will be that it would not constitute a breach of professional ethics.

On the other hand, if such photograph was published in connection with cases in which the lawyer had been engaged, or concerning his conduct in connection with litigation, past or present, it would definitely constitute a violation of Canon 27. Also, this would be the case if such photograph were published in connection with any comment or advertisement which could be considered either direct or indirect solicitation of legal business.

An extensive annotation upon the subject of advertisement by attorneys appears in 39 A.L.R.2d, beginning at page 1055. This annotation fully sets forth the practices by attorneys which have been considered by our courts and various Bar Associations as constituting advertising. A reference to this annotation should fully advise any member of the legal profession as to what conduct is considered as advertising under Canon 27.

It has been repeatedly held that the legal profession is not a business using "bargain counter" methods to reap large benefits for those who conduct it. However, a lawyer must obtain clients in some manner, and since he cannot advertise, he must necessarily obtain such clients by leading a life which justifies persons placing the utmost faith in him as a citizen; and rendering public service to his community is a part of such life, and a lawyer should be entitled to the same honor and recognition which come to an ordinary citizen. Since such recognition comes among other ways through newspaper items, the appearance of his photograph in a newspaper should not be condemned as unethical per se.