OBA Ethics Counsel
Ethics Opinion No. 237
Adopted February 16, 1966
The Committee has been requested to furnish advice with respect to certain aspects of the use of professional announcements. The first question relates to whether announcements may with propriety be sent to the following categories of lay persons: (This opinion does not relate to notices to other lawyers under Canon 46.)
1. Present clients of the inquiring firm.
2. Personal friends of partners and associates who are not presently clients of the inquiring firm.
3. Persons who were clients of firms or lawyers with whom partners or associates of the inquiring firm were associated, but who are not presently clients of the inquiring firm.
4. Casual acquaintances of partners and associates.
Our Advisory Opinion No. 195 (1958) appears to be applicable here. In that opinion we held that announcements could be sent to "clients," "relatives" and "personal friends." (That opinion also correctly held, although the instant inquiry does not reach this point, that members of the local bar and other lawyers with whom professional relations have been had are proper recipients of announcements.) This would clearly permit sending announcements to categories 1 and 2 above. The sending of announcements to casual acquaintances, category 4, would be a flagrant instance of solicitation by "personal communications ... not warranted by personal relations" forbidden by Canon 27.
Category 3, clients of firms or lawyers with whom a lawyer was formerly associated, presents a more difficult question, and one which is not explicitly covered by Opinion No. 195. There also appears to be some confusion, if not conflict, among the published opinions and authorities dealing with the question. For example, Drinker, Legal Ethics 191 (1953) (hereinafter cited as Drinker) and American Bar Association Informal Opinion (hereinafter cited as ABA Inf. Op.) No. 241 appear to hold that a resigning associate may not send announcements to any clients of his former firm. But then Drinker at 252_53 states that a resigning associate "may send a simple announcement to clients of the firm whom he knew well, but not solicit them." Compare ABA Inf.Op. Nos. 241, C-681 and C-787 with Ass'n of the Bar of the City of N. Y. Opinion No. 384, (1936) and N. Y. County Lawyers' Ass'n Opinion No. 109 (1916).
This indecisiveness is understandable, because it can be difficult to distinguish between a reprehensible attempt on the part of a resigning associate or partner to lure away clients from his former firm and a good faith announcement of a new association or the opening of an office sent to a friend whose acquaintance was made as a result of the lawyer's former association. This Committee believes that in the case of an associate (employee), the test must be whether the lawyer's relationship with the client of his former employer was sufficiently close to be classified as personal friendship, as contrasted with a strictly professional relationship. If there is not such a personal relationship, then no purpose could be served by the announcement other than to solicit the client's business. If the lawyer's relationship with the client was only in a professional capacity, presumably the client will nevertheless notice his absence and if the client should desire to retain him in the future, he can do so. The client should not, however, be confronted with an announcement which could have no purpose other than to solicit his representation. It goes without saying that personal contact with such clients would be even more reprehensible.
The case of a withdrawing partner is somewhat different; in such an instance, all firms clients, as contrasted with clients of the individual partners, should be made aware by announcement or otherwise of the withdrawal of a partner or partners. The withdrawing partner should also be entitled to inform such firm clients of his new association or office, since the client was in a sense "his". But in the case of the clients of the other individual partners in the former firm, the announcement of the withdrawing partner should be sent only to those clients who can honestly be said to also be his personal friends.
In order to avoid future difficulties, this is also an appropriate time to clarify and reaffirm the position of our Opinion No. 195 with respect to when announcements may be sent, and the content of announcements. (An announcement may never be published, other than in an approved law list.) Announcements may be sent upon the following occasions:
1. Opening of an office for the practice of law.
2. Removing an existing office to a new address.
3. The formation of a partnership, and upon the occasion of admitting new members to an existing firm. (The announcement must be made by the firm.)
4. The hiring of a new associate (lawyer employee) by a firm or lawyer. (The announcement must be made by the firm or employing lawyer.)
5. Returning from government service.
The announcement can contain only the name or names of the lawyers and firm concerned, the change in relationship, if any, of the lawyer or lawyers involved, the applicable office address or addresses, and a statement with respect to commencing, continuing or resuming the practice of law. A telephone number may be shown. Except in the case of patent, trademark, copyright or admiralty law, it is improper to make any reference to the courts or agencies before which the lawyer or firm will practice, or the branches or specialties of the law which will be practiced.
The last position held by an individual can be stated in an announcement in the case of a lawyer returning to private practice from government or public service. Any other recitals of present or former positions, posts of honor, association or committee memberships, special knowledge or skills or academic degrees or honors, constitute improper advertising. Furthermore, great care must be exercised to state only the last position held and eschew any unnecessary description of the nature of the work performed in such position, in order to avoid any implication that the lawyer or the firm is seeking to announce that the individual in question is specially qualified to handle matters in a particular branch or specialty of the law, or before a particular agency, department or tribunal.
Several announcements which violate, perhaps unwittingly, the foregoing restrictions on the content of announcements have come to the Committee's attention in recent years. Now that the matter has been clarified by this Opinion, future instances of this will not be countenanced.
The second question submitted is with respect to the necessity or propriety of reflecting the following information in a professional announcement:
1. Former members or associates of the firm who are now deceased.
2. Members or associates of the firm on leave of absence in military service.
3. Members or associates of the firm on leave of absence undertaking graduate studies.
This Committee held in its Opinion No. 152 (1950), interpreting Canon 33, that a firm name may continue to show the name of a deceased partner "when permissible by local custom, ... but care must be taken that no imposition or deception is practiced through this use." The surviving partner was enjoined "to plainly disclose in all reasonable ways that the firm name is merely the name under which he is conducting business," and one step prescribed was to indicate "on the firm stationery that one of the partners is deceased." The Committee at this time expresses no opinion with respect to which (if any) localities in Oklahoma have a "local custom" permitting a deceased partner's name to continue to appear in the firm name. With respect to announcements, if a deceased partner's name continues to appear in the firm name, the announcement should reflect that the partner in question is deceased; the preferred way to indicate this is to show the dates of the decedent's admission to the firm, and of his death; another permissible way is to show the dates of his birth and death. (See ABA Inf. Op. No. C-789) If the deceased partner's name does not still appear in the firm name, it should appear only in an announcement expressly sent to inform the recipient of the individual's death, or in the first firm announcement thereafter, in which latter case it must be an announcement sent within a reasonable time after his death. The dates which indicate that the firm member is dead should be shown as described above on such announcements.
In the case of the death of an associate, this can be reflected only in an announcement specifically sent to inform others of this fact, or incidentally, in an announcement sent soon after the death for another purpose or purposes. The dates shown in the case of an associate would presumably be those of his birth and death, since he was never a member of the firm.
Showing the name of a deceased partner or associate in an announcement under any other circumstances could only have the purpose of trading on the deceased individual's name and professional reputation in an effort to impress the recipient of the announcement with the importance of the continuing firm, and would therefore be improper.
Although this Committee has not ruled on the question of indicating in an announcement the fact that a member of the firm or an associate is on leave of absence, American Bar Association Opinion No. 240 (1942) holds that a firm may, if it chooses, send an announcement stating that a lawyer is "on leave of absence for war service," and indicate that fact "by placing an asterisk after his name on the letterheard [sic] referring to a footnote in small type reading somewhat as follows: 'On leave of absence for war service."' However, such action is not ethically required, and the firm may simply continue the lawyer's name on the firm letterhead without indication of the leave of absence. To the same effect, Ass'n of the Bar of the City of N. Y. Opinion No. 628 (1943).
In the case of a member of a firm elected to a fulltime local political office (other than judicial), the American Bar Association Committee has ruled that that member's name may be retained in the firm name if the letterhead indicates that he is on leave of absence. (ABA inf. Op. No. C-620) Drinker (at p. 206) states that "where a member (of a law firm) is on leave to serve in Congress, the firm letterhead may state 'on leave' but not that he is in Congress."
On the basis of the foregoing, the Committee holds that an announcement (and a firm letterhead) may, but need not, indicate that a member or associate is on leave of absence. In the case of a lawyer in military service, the announcement or letterhead may so state, but in the case of a leave of absence for any other reason, the purpose of the absence may not be stated. The reason for this restriction is especially obvious where election or appointment to public office, governmental service, or graduate study is involved, because the purpose underlying its recital could only be to direct attention to the importance of, or special experience or training being received by, the lawyer in question, which would redound indirectly to the benefit of the firm with which this person is associated.