Ethics Counsel on www.OKbar.org

OBA Ethics Counsel

Ethics Opinion No. 30

Adopted May 27, 1932

The Board of Governors is in receipt of the following request for an opinion:

"I would like to have your advisory opinion on the following questions:

(1) Is it advertising for an attorney to acquire space in telephone directory, immediately after his name in the attorney's classification section, and insert the following:

'General practitioneers [sic]: Special attention given to Personal Injury Damage Suits. Corporations, contracts and probate law.

.......... Former District Judge.'

'24 Years General Practice in All Courts, contracts, liens, titles, corporations, damages, probate.'

(2) If the above is advertising, is it not against the rules of legal ethics and therefore unprofessional?

(3) Is it not practicing law for a layman representative of an insurance company to appear in Industrial Court and represent his company in the trial of the case between the claimant and the respondent, the respondent having no attorney, only the representative of the insurance company, who conducts the trial of the case?

(4) Is it not practicing law for individuals, corporations or partnerships who are not licensed attorneys to advertise for such a business and have one or more representatives who travel over the state adjusting losses and appearing in Industrial Court as it sits in the different cities over the State of Oklahoma, and represent their respective companies in the trial of cases before the industrial court, the said representatives of course, not being licensed attorneys but who take the place of an attorney and fulfills his company's contractual obligation with the assured to furnish an attorney in such cases?"

In response:

As to questions (1) and (2):

The insertion of the printed matter referred to, at the instance of the attorney, is in clear violation of Rule of Professional Conduct No. 29, which forbids the "solicitation of business ... by advertisements," and is accordingly condemned.

This matter has been given exhaustive consideration by the American Bar Association Committee on Professional Ethics in opinion No. 53, appearing in the May 1932 issue of the American Bar Association Journal, which opinion is set forth in full in the May, 1932, State Bar Journal. See also opinion No. 43 of the American Bar Association Committee on Professional Ethics, January, 1932, which is reprinted in the June, 1932, State Bar Journal; also the Advisory Opinion of the Board of Governors No. 15, March, 1932, Journal as to principle involved.

In Opinion No. 53 of the American Bar Association's Committee on Professional Ethics, it is said: "As a matter of public convenience, it is desirable that a lawyer have his name listed in the classified telephone directory which the telephone companies authorize. So long as the lawyer's name is listed in such a directory in the usual manner and in the same style and size of type as other names are listed, such listing is not advertising, as there is nothing which will particularly distinguish the name of one lawyer from that of another. Payment for listing of this nature does not alter its character or carry any implications of impropriety. A lawyer who is not a telephone subscriber, but who uses the telephone of the firm with which he is connected or the telephone of some other subscriber, must usually pay for the listing of his name in telephone directories.

The listing of a lawyer's name in such a directory assumes quite a different character when he pays for having his name published in type of a different style or size from that in which the names of other lawyers are listed. In that event it becomes a form of advertising and a lawyer's conduct in causing it to be so published must be condemned (Opinion 43).

For similar reasons, we must disapprove the insertion of a lawyer's name in such directories under various headings. The very purpose of inserting a lawyer's name under these many headings is, as the publisher states in the letter which is quoted in the question, that of "informing prospective clients" that the lawyer desires their business. Therefore, the lawyer who causes his name to be thus inserted is advertising for professional employment. Those who desire to find a lawyer's telephone number or address in a classified telephone directory, will be fully accommodated by its insertion under the general heading which the publishers use to designate the profession."

As to question (3):

The State Industrial Commission, in the exercise of its power and authority to determine all questions in relation to the payment of claims for compensation under the provisions of the Workmen's Compensation Act, exercises judicial functions, and, in the exercise thereof, is a court of justice created under the provisions of Section 1 of Article 7 of the State Constitution.

It is the opinion of the Board of Governors that the preparation for the trial of a cause before the Industrial Commission, and the trial thereof before the Commission, involves the interpretation of statutes both as to the substantive rights of the parties and as to procedure before both the Commission and upon appeal to the Supreme Court, and the application of legal knowledge and skill both as to substantive rights and as to the assertion thereof, and constitutes the practice of law.

It follows that the insurance company and the representative thereof are engaged in the practice of law upon the facts stated in the question in violation of Sections 46 and 48 of the State Bar Act and, accordingly are guilty of the commission of a misdemeanor.

It is also the opinion of the Board of Governors that the parties so engaged are guilty of contempt of court, and subject to citation thereupon, and unless the practice is discontinued, should be enjoined from further engaging in the practice of law.

See People ex rel. Illinois State Bar Ass'n v. People's State Bank, 344 Ill. 462, 176 N.E. 901; Dworken v. Apartment House Owners, 38 Ohio App. 265, 176 N.E. 577.

As to question (4):

This question, insofar as it pertains to the trial of cause before the Industrial Commission, is answered in the answer to question (3). The Company and its representatives should be enjoined from soliciting employment in the practice of law and from engaging therein.

The portion of the question dealing with the adjustment of losses is considered in the answer to question (3).