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OBA Ethics Counsel

Ethics Opinion No. 191

Adopted September 11, 1957

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

INQUIRY

A metropolitan newspaper in Oklahoma has announced a special and enlarged issue of its paper in recognition of the State's semicentennial. It has invited a large number of Oklahoma citizens, including lawyers, to participate by furnishing their photographs, together with biographical information. The invitation recites that the charge made to the individuals accepting will cover the cost of space and photoengraving. The charge is said to be under the customary charge for comparable advertising space, but is substantially more than a mere subscription price for the special edition.

May a member of the bar with propriety thus cause or permit his photograph and biographical sketch to be published under such circumstances?

OPINION

In our opinion a lawyer may not with propriety contract and pay for such publicity. Notwithstanding, the designation given to it, we are of the opinion that it constitutes a form of advertising prohibited by the applicable Canon of Ethics and by previous official opinions of the State Bar Association.

Canon No. 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."

Opinion No. 15, dated January 22, 1932, and Opinion No. 92, dated September 27, 1935, involved facts apparently identical with those of the present inquiry. In each instance the participation by members of the bar was specifically censured as a violation of Rule 27, and in each instance the following extract from Opinion No. 43 of the Committee on Professional Ethics and Grievances of the American Bar Association was quoted with approval:

"A photograph of a lawyer, accompanied by a statement of his name, address and vocation is not a professional card and its publication, if paid for by the lawyer, either directly or indirectly, becomes a solicitation of business by advertising which must be condemned as a violation of Canon 27. The attention of the public is drawn in an unusual manner to the lawyer in connection with his profession. One of the features which distinguished an advertisement from news or literary article is the fact that its publication is paid for by one receiving the benefit of the publicity and the amount of the payment or what particular item of cost the payment is supposed to cover are immaterial."

As long as Canon 27 remains in effect, our opinion cannot be otherwise. While it is regrettable that in this instance the legal profession may be unrepresented in the special edition, if an exception were made, the abuses that would inevitably result are quite apparent.

In Advisory Opinion No. 150, dated October 20, 1950, the query reads as follows:

"Is it a breach of professional ethics for a lawyer to pay for or contribute to the cost of a photograph for publication or of the publication of his photograph, with or without biographical data, but with identification of the subject of the photograph as a lawyer?"

And the Answer reads as follows:

"A photograph of a lawyer, with or without accompanying biographical data, but accompanied by a statement of his name and vocation, is not a professional card, and therefore its making and publication, if paid for by the lawyer, in whole or in part, either directly or indirectly, becomes a solicitation of business by advertising which must be condemned as violative of the Canons of Professional Ethics. By the means referred to the attention of the public is drawn in an unusual manner to the activities of the subject of the photograph and directly in connection with his profession. An advertisement of this type is to be distinguished from news or literary article, and one of the principal distinguishing characteristics is the payment by the lawyer, in whole or in part, for the publication or of the cost of the photograph or plate. See opinions Nos. 15 and 92, State Bar of Oklahoma; Opinion No. 43, American Bar Association."

We also refer to Opinion No. 187 of this Committee, adopted by the Oklahoma Bar Association on July 8, 1957, in which the general question of the publication of photographs of lawyers was discussed in some detail. We adhere to the views therein expressed. They coincide with this opinion.