August 26, 1974
Ethics Opinon 1974-23
SUBJECT: OFFICE BUILDING SIGNS; JOINT OFFICES WITH LAYMEN; "OF COUNSEL" RELATIONSHIP
An attorney leases a portion of an office building across from the County Courthouse. He has subleased a part of his office space to a bail bond agency. Two private investigators also maintain offices in the building. On both sides of the foyer entrance on the west side of the building are matching glass enclosed signs approximately six feet long and four feet high. The surface of these signs appear to be of marble construction and includes several lines of raised metal lettering, each letter of which is approximately three inches in height. One of the signs designates the law offices of the attorney and his associate and also the names of several attorneys possessing an "Of Counsel" relationship to the attorney. The other sign designates the offices of the private investigators. The bail bond agency maintains two signs near the top of the building, one facing southwest and one northwest. The occupants share a receptionist.
Three problems are involved:
(1) The size, location and materials used in the law firm's sign;
(2) The appearance of impropriety in joint office arrangements between lawyers; and
(3) The designations of several attorneys as possessing an "Of Counsel" relationship.
Due to the size and elaborate construction of the attorney's sign, coupled with its location, it is not within the "modest" and "dignified" exception to Rule 2 of the California Code of Professional Responsibility, and is, therefore, improper as a form of solicitation.
The attorney has an obligation to establish necessary safeguards to eliminate even the appearance of improper practices and an improper relationship with his sublessee, the bail bond agency.
An attorney, who is designated as being "Of Counsel" to another attorney must maintain a close, regular and personal relationship with that attorney. The attorney's status may not be that of partner, associate, employee, outside consultant or forwarder of legal business.
RULES AND OPINIONS
Problem 1: The size, location and materials used in the construction of the sign.
A controlling statute in this matter is Rule 2(a) of the California Rules of Professional Conduct (West's Annotated Business & Professions Code §6076, Rule 2(a)) which reads in pertinent 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 . . .
(3) Using signs of any character, except a modest and dignified sign on or near the door of the law office of any attorney or such other place reasonably near thereto as may be sanctioned by local custom, disclosing his name or the name of his law firm, the word "Attorney", "Attorney at Law", "Counselor at Law"; "Lawyer", or "Law office", or if a patent lawyer, "Patent Lawyer."
The American Bar Association Committee on Professional Ethics said in Informal Opinion No. 800:
"We . . . believe that (a) sign should be one in good taste and not a large gaudy sign designated to attract attention, but one which would merely give information as to where the office is located."
The test of modesty, dignity and good taste of an attorney's sign is whether the sign is intended and calculated to enable persons who have already selected a lawyer to find him or to attract the attention of persons who might be looking for a lawyer, although not for him. If the sign is intended to attract attention, then it is improper to maintain such a sign. Drinker, Legal Ethics (1953) P. 231.
Problem 2: The appearance of impropriety in joint office arrangements between lawyers and laymen.
Rule 3 of the California Rules of Professional Responsibility reads in pertinent part as follows:
A member of the State Bar shall not employ another to solicit or obtain, or remunerate another for soliciting or obtaining, professional employment for him; nor, except with a person licensed to practice law, shall be directly or indirectly share compensation arising out of or incidental to professional employment . . . A member of the State Bar shall not knowingly accept professional employment offered to him as a result of or as an incident to the activities of any person not so licensed . . .
Informal Opinion 860, 749, 630, 612, 608 and 312, of the American Bar Association Committee on Professional Ethics state that joint office arrangements between lawyers and laymen should be discouraged. The reason is that the element of advertising on the part of the laymen might lead to indirect advertising on behalf of the attorney and the laymen's business may be used as a feeder for the attorney's law practice.
Informal Opinion No. 630 elaborates further:
A joint office arrangement between lawyer and a . . . (layman) is unethical only when it is, or could be used as a "feeder" of legal business to the lawyer, as an indirect method of sharing fees or responsibilities for legal business between the lawyer and a layman.
Problem 3: The designation of the names of several attorneys as possessing an "Of Counsel" relationship to the attorney.
The use of the term "Of Counsel" in designating a professional relationship between an individual attorney and a law firm or attorney has been considered in Formal Opinion No. 330 of the American Bar Association Committee on Ethics and Professional Responsibility, as follows:
The relationship indicated by the term "Of Counsel" is a close, continuing, personal relationship between an individual lawyer and a law firm or lawyer, and the relationship is one that is not that of a partner, associate, or outside consultant. A law firm may not be "Of Counsel" to another lawyer or law firm. While a lawyer conceivably could be "Of Counsel" to two law firms or lawyers, one cannot simultaneously have more than a maximum of two "Of Counsel" relationships. The term "Of Counsel" may be used, if it correctly describes the existing relationship, on letterheads, and professional announcement cards and in law lists and directories.
The use of the term "Of Counsel" was considered in Informal Opinions 678 (1963), 710 (1964), and 1134 (1969). In Informal Opinion 678 it was said, "It is the impression of the members of this Committee that the term "Of Counsel" shown on a firm's letterhead or shingle, is customarily used to indicate a former partner who is on a retirement or semiretirement basis, or one who has retired from another partnership or the general private practice or from some public position, who remains or becomes available to the firm for consultation and advice, either generally or in a particular field." Opinion 678 concluded that it would be misleading to use "Of Counsel" where the relationship involved only an individual case.
Informal Opinion 710 permitted the name of a retiring judge to appear as "Of Counsel" to a firm that included his son, a former law partner. The opinion stated in part, "From your letter of inquiry we infer that you do not intend to become a partner in the new firm, nor would you be an 'associate' inasmuch as you would not be an employee of the firm; although perhaps you would (1) share responsibility and liability with the firm in those cases in which you became 'Of Counsel' . . . or (2) be recompensed in those cases on an independent contractor basis, without sharing responsibility and liability with the firm."
(See Code of Professional Responsibility: DR 2-102(A)(1), (2), (3), (4), and (6); DR 20102(C) and (D). EC 2-103.)
By the terms of Rule 2(a), a sign designating law offices should be no larger and no more conspicuous than signs designating other law offices in the surrounding area. In the present case, the law offices are located across from the County Courthouse. His offices, therefore, are within close proximity of the County courts, offices, jail and library. This location is obviously extremely advantageous to the attorney and his practice. The advantage, however, should lie in the convenience to the attorney maintaining an office which enables him to better serve his clients and the public by minimizing his commuting problems and by providing him with improved access to the arteries of our local judicial system. The advantage should not lie in the apparent magnetism that more readily attracts a client in search of an attorney which may be attributed to such a location. Any office in a similar desirable location will possess a certain degree of this unavoidable client magnetism; however, an attorney is under a duty not to foster this magnetism by the construction and maintenance of a sign that lacks good taste, modesty and dignity. A sign designed to attract the attention of a person looking for an attorney is solicitous in nature and is, therefore, improper.
Safeguards must be established by the attorney in order to eliminate and avoid the improper practices listed above in Rule 3 and the cited Informal Opinion. On the basis of the information before the Committee at this time, the proper safeguards do not appear to have been adequately established by the attorney. The offices of the private investigators, the bail bond agency and the attorney utilize a common address, a common entrance, and a common reception room and receptionist. All three offices maintain their own signs on the building and the signs of the bail bond agency are especially designed to attract and solicit those in need of a bail bondsman. The problem is further compounded by the sharing of a common hallway, within the offices themselves, between the law firm and the bail bond agency.
It is important to note that the "feeder" aspect is of particular importance when the layman's business is one which might be affiliated with legal matters. The close relationship between a bail bond agency and legal matters clearly associated with the criminal law cannot be denied. It is one that may easily be abused and the attorney must demonstrate the cautions that will preserve the propriety of his practice.
It is important to note that the ethical character of the attorney and the owner of the bail bond agency is not questioned. There is no evidence that the relationship between these two distinguished professional men of the community is anything but above board and proper. However, an attorney, because of his duty to promote public confidence in our judicial system and in the legal profession, is held to a higher degree of professional responsibility than that of a layman. An attorney must avoid even the appearance of professional impropriety. (Canon 9 of the American Bar Association Code of Professional Responsibility.) The attorney, therefore, has an obligation to establish necessary safeguards to eliminate even the appearance of improper practices and an improper relationship between himself and his sublessee, the bail bond agency.
An attorney, who is designated as being "Of Counsel" to another attorney, must maintain a close, regular, and personal relationship with that attorney. The Opinion cited uses the example of a retired former partner who remains available for consulting and advice. (The term "Of Counsel" means either that the lawyer practices in the offices of the lawyer . . . to which he is "Of Counsel" or that his relationship . . . be so close that he is in regular and frequent, if not daily, contact with the office . . ." Formal Opinion No. 330, P. 4.) The attorney's status may not be that of partner, associate, employee, outside consultant or a forwarder of legal business.
At the present time there is insufficient information with which to render an opinion in regard to the attorney's situation. Inquires should be made of Messrs. ________________________ in order to determine their professional relationship.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: Effective 1/1/75, Rule 2 is Rules 2-101 through 2-104, Rule 2a is omitted from the new rules, and Rule 3 is Rules 2-104 and 3-101 through 3-103. The State Bar of California has issued proposed amendments to the Rules of Professional Conduct involving advertising; however, the proposed amendments would still require that signs be in modest and dignified form.
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.