February 8, 1973
Ethics Opinon 1973-4
SUBJECT: BIOGRAPHICAL AND LEGAL BACKGROUND INFORMATION; SOLICITATION
1. Is it proper for an attorney writing a treatise or a book on a legal topic to include in a biography which is to appear on the book jacket the following information:
a) His name.
b) The fact he is an attorney.
c) A list of his associations including nonlegal affiliations demonstrating expertise on the subject.
2. Is it proper for the attorney-author to include in the marketing brochure which he intends to use in selling the book, the above information, and in addition thereto, the following information:
a) The name of his law firm.
b) The location of his law firm.
c) His part-time academic position as a law school instructor.
d) His law degree and law school.
Item 1. Yes. The information shown in the biography which is to appear on the book jacket is entirely proper.
Item 2. Yes, with one exception. All information to be included in the marketing brochure is proper, with the exception of the name and location of the attorney-author's law firm.
RULES AND CANONS
Rule 2 of the Rules of Professional Conduct of the State Bar of California provides in part as follows:
"A member of the State Bar shall not solicit professional employment by advertisement or otherwise.
"Without limiting the generality of the foregoing, a member of the State Bar shall not solicit professional employment by . . .
"(2) Using a newspaper, magazine, radio, television, books, circulars, pamphlets, or any medium of communication, whether or not for compensation, to advertise the name of the lawyer or his law firm or the fact that he is a member of the State Bar or the bar of any jurisdiction; nothing herein shall be deemed to prevent the publication in a customary and appropriate manner of articles, books, treatises or other writing."
D.R. 2-101 (B) of the American Bar Association Code of Professional Responsibility provides:
"A lawyer shall not publicize himself, his partner, or his associate as a lawyer through newspaper or magazine advertisements, radio or telephone announcements, display advertisements in 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 D.R. 2-103. This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name: . . .
"(5) In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof."
D.R. 2-104(A)(4) of the American Bar Association Code of Professional Responsibility provides:
"Without affecting his right to accept employment, a lawyer may speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice."
FORMAL AND INFORMAL OPINIONS
A.B.A. Formal Opinion No. 92 provides that the writing and selling for publication of articles of a general nature on legal subjects is not improper.
In A.B.A. Informal Opinion No. C80l, the Standing Committee on Professional Ethics, in passing on the propriety of the distribution of a booklet on Labor-Management, stated:
"Of course, it would be proper for the name of the author of the booklet to appear on it even though he is a lawyer, just as any article on a legal subject can carry its author's name, as long as the firm with which he is connected is not mentioned."
A.B.A. Informal Opinion No. 1021, in passing upon the propriety of information included in literature and other advertising matter promoting legal publications, stated:
"The problem of determining what is appropriate for a lawyer to permit to be stated about himself in connection with publications of various kinds is a very troublesome one indeed. Involved is a question of freedom of speech, the need for lawyers in general to learn about the law from other lawyers, the need for lawyers to be leaders in articulating law and political philosophy to the public in general, and the desire on the part of the profession to minimize self-aggrandizement and to avoid the solicitation of business through any kind of self-tauting or advertising. Clearly, at times these different needs conflict, and the results in any given case must be reached by a balance of the desires of the profession in this respect.
"Certain law books that are written by lawyers, whether they are published by commercial publishing houses or by nonprofit corporations, whether they are sold through the trade or made a part of a continuing legal education package, are of great importance to the profession and the public. The ability of the other members of the profession and the public to judge whether or not to read and study the particular material or to determine how much weight is to be given to the statements, will often times depend upon the qualifications of the author, his experience, how other people judge him, the kinds of cases he handles, etc. Therefore, we do not think it improper for the publishers of such books written by lawyers to include in their announcements and advertisements information in a dignified manner about the lawyer and his associates. It should not be improper to include the name of the author's law firm or other material that is relative to the making of a judgment upon the value of the book by intelligent people." (Emphasis added.)
A.B.A. Informal Opinion No. 758 held that even a publisher's advertisement which contains extravagant claims for the book is permissible, the Opinion quoting Drinker's Legal Ethics at Page 261, to the effect that "there is a clear distinction between permitting the advertisement of a law book which he has written and that of his law practice."
However, in A.B.A. Informal Opinion No. 588, the Standing Committee held that it was improper for an attorney himself to advertise a book or pamphlet authored by him, the advertisement identifying the author as an attorney and giving the city of his residence.
It is apparent that the demarcation between unethical advertisement and the ethical dissemination of information is indeed a shadowy one. A review of the Rules of Professional Conduct of the State Bar of California, the American Bar Association Code of Professional Responsibility and the formal and informal opinions of the American Bar Association lead to the following conclusions.
Reviewing only the Table of Contents of the proposed book, it would appear that the book is devoted to many of the legal aspects of equestrian ownership, and as such is properly a legal text. Accordingly, the information that may be included pertaining to the author should be considered in light of the relative value of such information and advising the public as to the expertise of the author on the subject. The value of such information must then be weighed against the statutory and nonstatutory prohibitions against advertising by members of the bar.
To advise the buying public of the author's competence to write in the particular legal field, it is this writer's opinion that it is proper to include the author's name, the fact that he is an attorney, his activities in the equestrian field, his law degrees and his law school, as well as his academic position as a law instructor. It is further this writer's opinion that the author's position as a senior member of a law firm might provide some insight as to his standing within the legal profession, and as such may be germane to the issue of his qualifications and competence to write a book bearing upon the legal aspects of equestrian ownership.
It is this writer's opinion, however, that the inclusion of information pertaining to the name of the law firm and its location cannot be said to be "relative to the making of a judgment upon the value of the book by intelligent people." It is, therefore, recommended that the name and location of the author's law firm be deleted from the biographical material.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: The Committee reviewed this opinion on October 28, 1976 and found that it is consistent with the current state of the law. The State Bar of California has issued proposed amendments to the Rules of Professional Conduct which must be approved by the Supreme Court to become effective. Approvals of the amendments may affect the law in this area. Note that at the current time Rule 2 has been superseded by Rule 2-102. Also on this subject see Belli v. State Bar, 10 Cal.3d 824 (1974).
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.