August 5, 1974
Ethics Opinon 1974-16
SUBJECT: LECTURES ON LEGAL SUBJECTS--ADVERTISING AND SOLICITATION
A group of attorneys has been requested by a community college to give lectures or seminars (classes) on legal subjects to lay persons. May the attorneys participate in the lectures or seminars and may the classes be advertised by the college?
Yes. The lawyers may, under the auspices of a community college, participate in the lectures or seminars so long as (1) the material presented does not give specific advice on personal problems and is consistent with the prohibition of solicitation of professional employment and so long as (2) any advertisement by the college of an attorney speaker is limited to a statement of his name, that he is an attorney, his topic, and that he is experienced in matters on which he speaks.
Rule 18, now Rule 2-105, of the Rules of Professional Conduct of the State Bar of California makes it unethical for lawyers to provide advice or opinions to inquirers through any kind of publicity medium in respect to their specific legal problems, even if the lawyer is not compensated. Rule 18 provides in applicable part:
"A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a . . . publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated . . ."
A lawyer participating in a lecture or seminar on legal subjects to lay persons must be certain that he does not use discussion of hypothetical questions to render advice or opinions on specific legal matters. American Bar Association Informal Decision 503, referring to former Canon 27, is instructive:
"The difference between a discussion of legal problems on a hypothetical basis and on a personal basis may be at times rather slight. The lawyer must not use the hypothetical approach simply as a means of advising a member of the audience on his own personal problems."
Ethical Consideration ED 2-2 of Canon 2 of the American Bar Association Code of Professional Responsibility is apropos of the question and provides in part:
"The legal profession should assist lay[men] persons to recognize legal problems because problems may not be self-revealing and often are not timely noticed. Therefore, lawyers [acting under proper auspices] should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. [Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include preparation of [institutional] advertisements and professional articles for lay publication and participation in seminars, lectures, and civic programs should be motivated by a desire to benefit the public in its awareness of legal needs and selection of the most appropriate counsel. [But a lawyer who participates in such activities should shun personal publicity.]
Opinion No. 221 of the Los Angeles County Bar Association is also instructive. It provides in relevant part:
"If (a lawyer) may publish written articles, it would seem permissible that a lawyer may give lectures. Lawyers have customarily acted as lecturers in business law courses for laymen. The lawyer must, however, avoid the giving of legal advice on their personal problems to those who attend the lectures and avoid improper advertisement."
This opinion also concludes that the answering of questions put to a lecturer, by the audience, if designed to answer a personal legal problem, ". . . would violate Code of Professional Responsibility 18 of the State Bar Rules for Professional Conduct . . ."
STATUTES AND DISCIPLINARY RULES
Both Rule 2, now Rule 2-101, of the Rules of Professional Conduct of the State Bar of California and Disciplinary Rule DR 2-101 of Canon 2 of the American Bar Association Code of Professional Responsibility proscribe the solicitation of professional employment, either directly or indirectly.
Former Rule 2 provides in relevant part:
"Section a. 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 . . . circular, . . . 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, . . ."
DR 2-101 [Publicity in General] Publicity and Advertising, provides:
(B) A [strike section and subsections 1-6] . . . false, fraudulent, misleading, deceptive or unfair statement or claim includes a statement or claim which:
(1) contains a misrepresentation of fact;
(2) is likely to mislead or deceive because in context it makes only a partial disclosure of relevant facts;
(3) contains a client's laudatory statements about a lawyer;
(4) is intended or is likely to create false or unjustified expectations of favorable results;
(5) implies unusual legal ability, other than as permitted by DR 2-105;
(6) relates to legal fees other than a standard consultation fee or a range of fees per specific types of services without fully disclosing all variables and other relevant factors;
(7) conveys the impression that the lawyer is in a position to influence improperly any court, tribunal or other public body or official;
(8) is intended or likely to result in a legal action or a legal position being taken or asserted merely to harass or maliciously injure another;
(9) is intended or likely to appeal primarily to a lay person's fears, greed, desire for revenge, or similar emotions;
(10) contains other representations or implications that in reasonable probability will cause an ordinary, prudent person to misunderstand or be deceived.
(C) A lawyer shall not compensate or give anything of value to [representatives] a representative of the press, radio, television, or other communication medium in anticipation of or in return for professional publicity [in a news item] unless the fact of compensation is made known in such publicity.
American Bar Association Informal Decision 659, interpreting former Canon 27, determined that a lawyer advertising a course for instructing applicants for real estate licenses in a pamphlet or brochure outlining the purpose and extent of the course and the qualifications of the attorney-instructor indicating his membership in the American Bar Association, the State Bar, and that he was "a practicing attorney" was in violation of Canon 27 and improper.
American Bar Association Informal Opinion Number 840 provides in relevant part that it is proper for a lawyer to participate in a seminar on a legal subject so long as the seminar is run in a proper manner and that any notices concerning the seminar state the lawyer's name, a statement that he is an attorney, and a statement that he is experienced in matters on which he speaks.
American Bar Association Informal Opinion 952 determined that there was no improper conduct in a practicing attorney teaching adult education courses in practical law so long as he conducted himself within the rules proscribing advertising and advice to individual participants in the course of the program.
Ethical Consideration 2-2 of Canon 2 of the American Bar Association's Code of Professional Responsibility encourages lawyers, acting under proper auspices, to participate in educational programs concerning our legal system with particular reference to legal problems that frequently arise so long as the lawyer avoids rendering opinions to his listeners on their personal problems and does not violate the rules against personal publicity. The sponsoring agency, a community college, is a recognized educational institution. A.B.A. Informal Opinions 659, 840 and 952 would appear to permit notices of the educational program identifying the name of the speaker, the fact that he is a lawyer, the subject matter of the lecture, and the fact that he is experienced in matters on which he speaks. A.B.A. Informal Decision 659 advises that it is improper for such a notice to indicate the lawyer's membership in any state bar or bar association. It is this writer's opinion that it would be ethical for the attorneys, under the auspices of a community college, to participate in the lectures or seminars provided that they avoid rendering legal opinions to their listeners on their personal legal problems and provided that neither they nor the college violate the rules against advertising.
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 on 9/6/76 and found to be valid with some modifications in the materials cited. Changes have been indicated in the opinion by underlining additions and bracketing deletions. Please note that the A.B.A. Code is not in force in California.
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.