OBA Ethics Counsel
Ethics Opinion No. 285
Adopted April 18, 1975
May an attorney permit publication in or through a medium of public communication of a letter written by him concerning litigation he had handled which by the context of the letter indicates that the writer is the attorney involved in the litigation?
STATEMENT OF FACTS
A member of the bar has been contacted by a national magazine in connection with such magazine's request to publish a letter written by the bar member to a charitable institution sponsored by such magazine concerning a trial handled by the bar member. The correspondence in question contained no matters of a confidential nature and all the facts therein had previously been printed in newspaper accounts of the trial. The letter, however, by its context would indicate that the writer was the attorney involved in the litigation, but no attorney designation would have been entered after the name of the writer.
The answer to the inquiry is in the negative, for the reasons set out below.
An attorney like any other citizen has the right to make oral and written statements within the ambit of the constitutional protections afforded to the freedoms of speech and of the press. However, in making such statements an attorney, by being afforded the privilege of practicing law, is bound by the ethical considerations of his profession. These require that a lawyer refrain from participating in public communications that contain statements of a nature whose effect might be to attract lay clients.
Disciplinary Rule 2-101(A) provides:
"A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, 'public communication' includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book."
Likewise our ethics prohibit a lawyer from publicizing himself as a lawyer.
Disciplinary Rule 2-101(B) provides:
"A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisments [sic] in the city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103...."
Assuming the communication in question by an attorney is otherwise ethically proper, it is clearly proscribed by the above disciplinary rules.
Previous opinions of this committee in considering the propriety of such publicity have held it to be ethically suspect for an attorney to permit his name to be used in connection with newspaper articles concerning specific legal representations or accomplishments unless the name of the attorney is in itself germane to the news. OBA Opinion No. 223 (1963); OBA Opinion No. 203 (1959).
In OBA Opinion No. 223 (1963), this Committee in discussing the responsibility of a member of the bar when questioned by news reporters concerning litigation which he had handled or is handling said:
"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....
"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 invovled [sic] constitutes one of the rare instances where the names of attorneys were news in their own right."
In OBA Opinion No. 203 (1959), this Committee stated:
"While it is not an impropriety for attorneys to permit their pictures to be published for outstanding civic service, service to the bar association and in connection with social functions and the like, it is equally unquestionably a violation of this Canon to solicit or permit publicity concerning personal achievements or actions relating to specific legal representation or accomplishments and when doubt exists, such doubt should be resolved in favor of the Canon and the particular doubtful activity not permitted."
And in OBA Opinion No. 272, 44 Okla. Bar J. 2153 (1973):
"A lawyer must avoid any direct or indirect form of advertising himself and should not inspire laudatory stories in the press or in other forms of communication. Even when such comments do not take place at his instigation, he should endeavor to avoid their repetition."
The Committee on Ethics and Professional Responsibility of the American Bar Association in condemning indirect advertisement through newspaper comments about causes in which a lawyer has been or is engaged in ABA Formal Opinion No. 140 (1935) said:
"The most worthy and effective advertisement possible, even for a young lawyer .... is the establishment of a well merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct .... Indirect advertisement for business by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged .... defy the traditions and lower the tone of our high calling and are intolerable."
IN ABA Informal Opinion No. 479 it was held unethical for an attorney to release unsolicited news items of his professional employment to a newspaper.
Recognizing the right of an attorney to comment on matters of general public interest by a letter to a newspaper is ABA Informal Opinion No. 473 which states,
"An attorney may permit his name to appear on a letter to the editor of a newspaper on a subject of general interest where he is not identified as an attorney." (Emphasis added.)
One obvious exception which should be made to the above restriction would involve communications to legal journals primarily circulated to members of the legal profession.
Disciplinary Rule 2-101 does permit limited and dignified identification of a lawyer as a lawyer as well as by name as follows:
"1. In political advertisements when his professional status is germane to the political campaign or to a political issue.
"2. In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.
"3. In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.
"4. In and on legal documents prepared by him.
"5. In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof."
See, also, OBA Opinion No. 272, 44 Okla. B.J. 2153 (1973).
The appropriate consideration by which to judge all such communications by an attorney is described in Drinker, Legal Ethics 218 (1953), where the author in discussing publicity said:
"Where publicity is the normal by-product of able and effective service, whether of a professional or non-professional character, this is a kind of 'advertisement' which is entirely right and proper. Clients naturally gravitate to a lawyer who has successfully represented their friends or who has obtained the confidence of the community by effective public service. What is wrong is for the lawyer to augment by artificial stimulus the publicity normally resulting from what he does, seeing to it that his successes are broadcast and magnified. While in hypothetical cases it may often seem difficult to draw the line between what is right and what is not, actually, a lawyer soundly brought up in the law, who wholeheartedly accepts his professional status, will rarely have any difficulty in realizing the difference between the normal by-product of efficient service and the unwholesome results of self-aggrandizement."
With regard to the specific facts of the inquiry, it seems apparent that all the information sought to be elucidated by the letter has been the subject of previous news comments. The magazine in question is free to publish such news comments and any editorial viewpoint on the litigation, but a letter written by the attorney denoting his connection with such litigation is ethically suspect since even with the best of intentions, such identification would be self-laudatory.