October 16, 1969
Ethics Opinon 1969-6
SUBJECT: ADVERTISING. UNAUTHORIZED PRACTICE OF LAW. RENDERING LEGAL ADVICE TO NON-CLIENTS
An advertisement in a local newspaper announced a panel discussion regarding professional incorporation and named an attorney who would be on the panel and the firm name of that attorney.
The officers of the counselling corporation were all members of the law firm of the attorney.
What is the propriety of the advertisement?
It is the opinion of this Committee that because of the real and practical difficulties of avoiding the prohibitions of self-advertising, counselling on the personal problems of listeners, the possible unauthorized practice of Law, and the detraction from the dignity of the profession, it is improper and unethical for an attorney to participate in the program or the advertisement or the counselling corporation.
STATUTES AND CANONS
Rule 18 of the Rules of Professional Conduct and Canon 40 of the Canons of Professional Ethics provide that a member of the State Bar shall not advise inquirers or render opinions to them through a publicity medium of any kind in respect to their legal problems, whether or not such attorney shall be compensated for his services.
Canon 47 provides that:
"No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."
(See also Rule 3, Rules of Professional Conduct.)
Canon 35 provides that:
"The professional services of a lawyer should not be controlled or exploited by any lay agency, personal or corporate, which intervenes between client or lawyer."
(See also Rule 3, Rules of Professional Conduct.)
Also involved are Canons 27 and 29 as well as Rule 2. These will be discussed in the Analysis.
There is no inherent violation of professional ethics for an attorney to address a lay group if the program conforms to the ethical standards of the Bar. Violations of professional ethics may occur depending upon the particular circumstances surrounding the particular program involved.
Any impropriety would probably occur in one of three areas:
1. The use of such programs to solicit professional employment for the participating attorney or his law firm.
2. The participating attorney aiding in the unauthorized practice of law.
3. The giving of legal advice to persons with whom the participating attorney has not had the personal contact required between attorney and client.
There is a distinction between commercial and noncommercial programs, and the general rules follow from this distinction. It would not ordinarily be improper for an attorney to participate in a program at the request of an organization for noncommercial purposes, such as a service club. Where the program is operated by a business for the purpose of attracting business to the sponsor of the program, the attorney should not participate. The purpose of a commercial program is to solicit business. The impression created is that all who participate seek employment from those who attend and the participation by an attorney creates the impression that the attorney seeks professional employment from those who are in attendance. Such conduct violates Canon 27 of the Canons of Professional Ethics of the American Bar Association, as well as Rules 2 and 3 of the Rules of Professional Conduct of the State Bar of California. In addition to these violations, the participation by an attorney tends to assist the sponsor of the program in the sponsor's solicitation of business and, therefore, does not tend to maintain the dignity of the profession. This would be a violation of Canon 29 of the Canons of Professional Ethics.
In the factual situation presented to this Committee the participating attorney is also an officer of the sponsoring business, and several officers of the corporation are members of the law firm of the participating attorney. These particular circumstances reveal a gross and flagrant violation of the Canons of Professional Ethics and the Rules of the State Bar of California.
The advertisement named in these facts discloses that there will be a question and answer period following the forum proper. Although the program may not be aimed at soliciting legal questions, obviously legal questions will arise. This question and answer period provides a fertile field of ethical problems. During such a period other members of the panel would be answering questions of a legal nature, with the implied consent and approval of the participating attorney. The question and answer period also permits the professional services of an attorney to be controlled or exploited by a lay agency.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: This Opinion was reviewed June 30, 1976 and found to be valid under the specific facts set forth in the Opinion; however, it should be pointed out that the mere conduct of a seminar would not in and of itself constitute unethical practice if certain requirements are met. A further analysis of this issue is available at the office of the Legal Ethics and Unlawful Practices Committee of the County Bar Association.
Effective 1/1/75, California Rule 18 is 2-105, 3 is 2-104 and 3-101 through 3-103; and 2 is 2-101 through 2-104. The subject matter of old Canons 35 and 40 is now found in Canons 2 and 5 of the Code of Professional Responsibility of the American Bar Association.
Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.