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OBA Ethics Counsel

Ethics Opinion No. 195

Adopted May 5, 1958

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

INQUIRY

1. Is it proper and ethical for a law firm or lawyer to publish one or more times in THE DAILY LAW JOURNAL-RECORD, or a similar legal publication, the following announcement:

"ANNOUNCEMENT

"____________(name), ____________(name) and ____________(name) announce the reorganization of this partnership under the firm name of ___________ (name), ___________(name) and __________(name), and the admission as a partner of ___________(name) for the general practice of law, including the handling of corporate and probate work and specializing in federal income, estate and gift tax matters"?

2. Is it proper and ethical for a law firm or lawyer to pay for and have published one or more times an announcement in THE DAILY LAW JOURNAL-RECORD, or a similar legal publication, showing his change of address, addition of new partners, etc.?

3. Is it proper and ethical for a law firm or lawyer to publish and distribute (a) to lawyers only and/or (b) to laymen only, and (c) to lawyers and laymen, the following announcement:

"___________(name), _______(name), ___________(name) & _________(name)

Attorneys and Tax Counsellors [sic]

(names) (address) (telephone)

"We announce the formation of a partnership under the firm name of

_________(name), _________(name), _________(name) & _________(name) and the admission as a partner of

______________(name)

who will continue the general practice of law, including the handling of corporation, insurance, real estate, and probate matters, and specializing in state and federal trial work, and appearances before administrative boards and legislative committees.

..........................

"We also announce the association with us of ____________(name)

who will continue the general practice of law, including the handling of corporate, probate and trial work and specializing in federal income, estate and gift tax matters"?

OPINION

The questions here presented require an interpretation of Canon 27, and to the extent indicated below an interpretation of Canon 46. The specific question raised by the first and second questions has, in our opinion, been directly answered by Advisory Opinion No. 169 of this Committee, rendered June 10, 1953. There the inquiry was as follows:

"I have recently started my practice of law here in __________________, and was wondering if it might be possible for me to run an announcement that I had started my practice of law."

After quoting Canon 27 and discussing the changes which had occurred in the Canon, particularly the amendment of 1937, together with prior decisions of this Association and of the American Bar Association, the Opinion concludes that Canon 27 does not permit the publication of professional cards in a newspaper and "does not permit their publication except in approved law lists as set out in said Canon." In our opinion the last sentence is controlling, although THE DAILY LAW JOURNAL-RECORD is not a newspaper in the ordinary sense of the word, the Canon as now written makes no distinction and clearly prohibits publication of such announcements in any medium except "approved law lists". (See also Opinion No. 182 of the Legal Ethics Committee of the American Bar Association.) As the publication of any such announcement is prohibited, no comment is necessary concerning the wording of the announcement as set forth in the inquiry; but we feel that we should point out that the opinions of Committees in these jurisdictions which permit the publication of informative announcements in legal periodicals and law journals are unanimous in their condemnation of announcements which indicate the types of practice in which the attorney or attorneys will engage on the grounds that it indicates some claim of special ability and could be included only for the purpose of soliciting business.

As submitted, the third part of the inquiry is divided into three parts; however, as made, we are of the opinion that the announcement does not come within the exception provided by Canon 46, and is in violation of both the spirit of Canon 27 and the construction placed thereon by Committees throughout the country.

As indicated by Mr. Drinker in his text, on page 232, there is no specific exception in Canon 27 authorizing normal announcements, but such is obviously implied from the prescription of solicitation and advertising "not warranted by personal relations". Accordingly, it has been universally recognized by Committees that a truthful, dignified, appropriate announcement by a lawyer opening an office, removing to a new address, forming a partnership, admitting new members, or returning from government service may be sent to persons with whom he has already established personal relations, such as personal friends, clients, relatives, members of the local bar and other lawyers with whom he has had professional relations. Numerous opinions of the American Bar Association Committee categorically state that such an announcement may not state a special branch which the lawyer or firm intends to practice. In the syllabus of Opinion No. 251 rendered by the American Bar Association Committee on June 26, 1943, the following is found:

"Cards announcing the opening or removing of an office may not contain statements to the effect that a lawyer intends to specialize in certain types of work or before certain tribunals other than such as are permitted by Canon 46."

Syllabus 2: "Except as permitted by Canon 46, an attorney may not send out an announcement that he intends to limit his practice to a particular branch of the profession or before a particular tribunal."

It is your Committee's opinion that the construction made by the American Bar Association Committee is correct; that the only reason for the inclusion in the announcement of the various types of practice to be engaged in is to advertise and solicit business and, as such, it is in direct violation of Canon 27.

Heretofore in this opinion, reference has been made to Canon 46. We are of the opinion that it is not involved in announcements such as those included in the inquiry at hand. However, because of its relationship to such announcement and particularly because said Canon 46 was amended in February of 1956, it is herein set out:

"A lawyer available to act as an associate of other lawyers in a particular branch of the law or legal service may send to local lawyers only and publish in his local legal journal a brief and dignified announcement of his availability to serve other lawyers in connection therewith. The announcement should be in a form which does not constitute a statement or representation of special experience or expertness."

We do not believe that Canon 46 is applicable in this case for, by no stretch of the imagination, could the foregoing announcement be interpreted to be one only for the purpose of indicating an availability to serve other lawyers.

While the foregoing opinion answers the specific questions propounded, in view of the numerous inquiries made to the Executive Secretary of the Association and also in view of the frequent violations of the Canon which are quite apparently made in complete good faith, the Committee feels that certain positive rules should be laid down which will serve as a guide to members of the bar wishing to make an announcement of (a) the opening of an office, (b) removing to a new address, (c) forming a partnership, (d) admitting new members, or (e) returning from government service:

1. In any of the cases set forth above, an announcement simply stating the fact to be announced, i. e., opening an office, formation of a partnership, etc., may be sent by mail to members of the local bar, personal friends, clients and lawyers outside the local bar with whom personal contacts have been had.

2. It is not improper for an attorney to state, in an announcement of his return from government service, the particular public office from which he is returning to private practice. Such statement should not go beyond naming the department or agency with which the attorney served and the title of his position held therein. It should be, of course, limited solely to the single position held immediately prior to his return to practice and should be so set up to avoid the implication that the attorney is seeking to announce that he is specially qualified to handle matters dealt with by such agency or department.

3. Such announcements should not indicate in any way the particular courts before which such lawyers will practice, or refer to any particular branch of law intended to be practiced, with the exception of admiralty, copyright and trade-mark law.

4. Advisory Opinion No. 174 of this Committee, rendered December 9, 1953, directly and specifically forbids the use of the terms "Tax Counsellor" [sic] and "Tax Attorney" on letterheads or shingles. The Committee feels it is equally objectionable on announcements.

5. No such announcement may be published, other than in an approved law list.

6. Pursuant to Canon 46, a brief, dignified announcement directed to lawyers only and announcing only the availability of the lawyer to act as an associate in a particular branch of law, may be sent to local lawyers and published in a local legal journal. It is emphasized that such an announcement may not be coupled with the announcement of the type heretofore discussed.

7. In form and content, any announcement sent out by a lawyer should be truthful, dignified, appropriate and in good taste.