OBA Ethics Counsel
Ethics Opinion No. 262
Adopted April 23, 1971
The Committee on Legal Ethics has been asked for its opinion on the propriety of attorney X's offering for sale to the public a manual of small claims procedures and practices.
The Committee declines to pass judgment upon the merits of the submitted publication and feels constrained to advise the Bar that the Committee will not undertake to act as a book review panel for the purpose of placing its stamp of approval or disapproval on particular attorney authored publications.
The Legal Ethics considerations involved in attorney X's request, however, are of a sufficient importance, as to suggest a need for restatement of the pertinent standards. The question of whether or not an attorney at law may compile and offer for sale a procedural manual which is designed and intended to be read and used by the public in the handling of personal judicial action through the small claims procedures must be answered in the context of the Oklahoma law.
Laymen and lawyers alike are privileged to purchase legal treatises, form books, annotated statutes and other professionally oriented publications. Laymen have always been free in this state to file and advocate their own judicial actions, subject to the supervisory jurisdiction of the judges of our courts acting in the exercise of judicial discretion.
Where a special judicial agency or vehicle, such as the small claims courts, has been created by law for the express purpose of permitting laymen to bring legal action on their own behalf, the Bar should do nothing to hamper the public's free use of such judicial agencies and vehicles for relief.
The Committee, therefore, is of the opinion that an attorney may ethically compile and sell a reference book or a procedural manual, provided that no aspect of unethical advertising or solicitation is present in either the form and content of such a publication or in the manner in which such a publication is marketed to the public. OBA Advisory Opinion No. 108, May 22, 1936. See also Code of Professional Responsibility, Disciplinary Rule 2_104(A)(4).
Where an attorney's publication, when read in context, is written in such a manner that it constitutes the offering of professional advice on specific legal problems, in connection with which competent legal advice would necessarily have to be based on a full knowledge of all the facts actually involved, the sale of such a publication would constitute unethical conduct by the attorney-author.
The publication of a professional treatise, legal article or procedural manual is to be differentiated from those publications, whatever their form, which amount to an attorney's professional analysis of actual legal problems offered to the public for the purpose of proposing carte blanche solutions intended to be acted upon by the laymen readers. As stated in the Code of Professional Responsibility, Ethical Consideration 2_5:
"A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein."
In addition to the foregoing ethical considerations, a manual of practice or of procedure prepared by an attorney and offered for sale to the public must be accurate. Disciplinary action is warranted against an attorney who publishes that which has been irresponsibly prepared and contains false, inaccurate or misleading statements on matters reasonably assumed by the public to be within the professional competency of a licensed attorney. In Re: Donovan, 178 N.W. 143 (S.Dak.1920), 9 A.L.R. 1497.
The professional responsibility of an attorney at law who undertakes the preparation, publication and sale of a procedural manual to the public is no less than that which is required in handling a specific client's legal matters entrusted to him.