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OBA Ethics Counsel

Ethics Opinion No. 94

Adopted September 27, 1935

A member of the Bar has inquired as to whether or not it is proper to have his name inserted in a law list which guarantees to its users the fidelity of its listees through bond or other similar means.

In response:

The Committee of the American Bar Association on Commercial Trade and Commercial Law in its report to the 1923 annual meeting of the Association condemned the bonding of attorneys in the faithful performance of their duties as attorneys and recommend that a resolution be adopted to that effect (Vol. XLVIII Annual Report 1923, p. 285). The report was adopted by the Association (same volume, page 60). It was said by the Committee that this matter of use of attorneys' names for advertising purposes (i. e., lists of bonded attorneys) should not meet with the approval of the Association, and that it is contrary to the dignity of the profession and detracts from it for an attorney to have advertised that he is a guaranteed lawyer in a collection agency list in order that he may get credit for faithfulness in his business, upon the ground that such a custom is beneath the honor and dignity of the profession. The Committee on Professional Ethics of the New York County Lawyers Association in answer to Question 239, concurred in the disapproval of the committee of the American Bar Association.

The Board of Governors concurs in the views expressed by both of the aforesaid committees.

Rule 45 of the Rules of Professional Conduct of the State Bar provides:

"A lawyer's professional card may with propriety contain only a statement of his name (and those of his lawyer associates) profession, address, telephone number and special branch of the profession practiced. The insertion of such card in a reputable law list is not condemned and it may there give reference or name clients for whom the lawyer is counsel, with their permission."

It is not proper professional conduct for a member of the bar to directly insure his fidelity to his client by a means of a bond, guaranty, or other similar means. Therefore, the list is not reputable because it does for the lawyer that which he might not do for himself.

Members of the bar should be employed on the basis of merit only, that is upon the basis of capacity and integrity. The bonding or guaranteeing of the fidelity of a member of the bar by a third person substitutes the obligation of the bond or guaranty for the element of integrity, one of the principal attributes of professional standing.

This opinion to be applicable only as to publications issued subsequent to June 30, 1936.