OBA Ethics Counsel
Ethics Opinion No. 223
Adopted November 15, 1963
A metropolitan paper recently carried a series of articles concerning incidents and difficulties encountered by litigants with personal injury actions. Members of the Bar were not only quoted in some detail, but were named and were described as:
"_________, whose firm specializes in damage suits,"
"_________, of the firm of ___________, who represents a number of insurance companies," and
"_________, a damage suit lawyer."
What is the responsibility of an attorney when a reporter asks him questions such as those asked or implied in this series of articles?
If the lawyers involved were cognizant of the fact that their names were to be used in connection with these articles, and particularly if they were cognizant of the fact that they would be described as they were described, their conduct was clearly in violation of Canon 27, which reads in part as follows:
"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."
It is further felt that it is the specific responsibility of a lawyer, upon being questioned by a reporter concerning litigation in which he is or has been engaged, to be certain that the reporter is particularly advised not to utilize his name in connection therewith.
The syllabus of Opinion No. 140 of the Committee on Professional Ethics and Grievances of the American Bar Association reads as follows:
"It is professionally improper for an attorney to furnish, inspire, or acquiesce in newspaper comments about causes in which the attorney is or has been engaged. The impropriety is accentuated by the publication with such comments of posed newspaper pictures of the attorney and his client."
Further citation of the numerous authorities on this question is unnecessary in view of the clear and concise wording of the Canon and the construction placed thereon by the American Bar Association.
The common practice of newspaper reporters in naming the attorneys involved in litigation, particularly litigation involving personal injuries or domestic problems, should be discouraged by members of the Bar in every way possible. This practice has reached such proportions that young lawyers, and certainly the members of the press, seem to feel that it is perfectly proper, and do so without reservation. It is, therefore, recommended that every effort, both by the organized Bar and the individual members thereof, be made to insure that the members of the press thoroughly understand that only where the name of the member of the Bar is "news," should it be utilized in reporting on any case.
It is difficult to conceive of any instance in recent years where the name of an attorney is "news." The Scopes Trial in which the late William Jennings Bryan and the late Clarence Darrow were involved constitutes one of the rare instances where the names of attorneys were news in their own right.
It is also recommended that where names of individual attorneys or firms appear in the news, investigation be made to determine whether or not the member of the Bar in any way contributed thereto; and it is further recommended that all elements of news media be asked officially to cooperate.