March 28, 1975
Ethics Opinon 1975-5
SUBJECT: SOLICITATION FOR OFFICE HELP
In what way, if any, may an attorney ethically seek either part-time or full-time office help for his law practice, and does the following method constitute unethical advertising on the part of the attorney? The following quoted item was inserted in an evening College Associated Students communication, apparently to all students and faculty members of the college:
"WANTED: BOOKKEEPER AND TAX MAN: The law office of (attorney's name) have a substantial number of clients who have tax problems who wish their income tax figured this year. For information, please call (attorney's number)."
The form and context of the above quoted solicitation for office help is unethical. The use of the attorney's name and number and identifying the attorney along with the statement "have a substantial number of clients who have tax problems who wish their income tax figured this year," constitutes a self-laudatory pronouncement.
STATUTES AND CANONS
Rule 2 of the Rules of Professional Conduct of the State Bar of California and Canon 2, Ethical Considerations 8, 9 and 10 thereunder, and Disciplinary Rule 2-103 thereunder, of the American Bar Association Code of Professional Responsibility all proscribe solicitation of professional employment, either directly or indirectly. Canon 2, Ethical Consideration 9 of the A.B.A. Canons states as follows:
"Unregulated professional advertising by lawyers would interfere with the process of informed selection of legal counsel and might give the public a distorted conception of the ability of the lawyer. Furthermore, it would encourage extravagant, artful, self-laudatory, brashness in seeking business and thus could mislead the laymen. Unrealistic representations in competitive advertising would inevitably produce unrealistic expectations in particular cases and bring about distrust of the law and lawyers. Public confidence in the system of justice would be decreased by undignified, commercial advertisements of professional services because the legal profession is an integral part of that system. The attorney-client relationship is personal and unique, and it should not be established as the result of the pressures and deceptions that are likely consequences of uncontrolled advertising. History has demonstrated that public confidence in the legal profession is best preserved by self-imposed over, rather than by unlimited, advertising."
Canon 2 Disciplinary Rule 2-103, Commercial Publicity, is as follows:
"(A) A lawyer shall not publicize himself, his partner, or associate as a lawyer to newspaper or magazine advertisements, radio or television announcements, display announcements in the city telephone directory, or other means of commercial publicity, nor shall he authorize others to do so in his behalf.
Disciplinary Rule 2-103(A) does not prohibit dignified identification of a lawyer as a lawyer as well as by name: (1) In political advertisements when his professional status is germane to the political compaign or to a political issue. (2) In public notices when the name and profession of a lawyer are required or authorized by law, or are reasonably pertinent for a purpose other than the attraction of potential clients. (3) In a newspaper notice of the establishment of a law office or a change of office address, that such notice shall be modest and may be published only for a period not to exceed 30 days. (4) In routine announcements of a bonafide business, civic, professional, or political organization in which he serves as a director or officer. (5) In and on legal documents prepared by him. (6) In and on legal textbooks and treatises and in dignified advertisements thereof.
(B) A lawyer shall not utilize, or participate in the utilization of, any form of public communication which contains professionally self-laudatory statements calculated to attract lay clients. . . ."
Rule 2 of the Rules of Professional Conduct of the State Bar of California reads, in part, as follows:
"Section A - A member of the State Bar shall not solicit professional employment by advertisement or otherwise. . . .
(2) Using a newspaper, magazine, radio, television, books, circulars, pamphlets, or any media 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 writings."
INFORMAL OPINIONS OF THE A.B.A.
Informal Opinion No. 862 considered the situation of the law firm advertising for a stenographer. The Committee felt that, in that case, the intent of the advertisement for a legal secretary was one of the controlling factors but that on the face an advertisement for a legal secretary that also lists the law firm would not be unethical, per se. In discussing the intent the Committee stated:
"But, if the form of the advertisement is more similar to that employed by a businessman with goods or products to sell, in an effort to call the attention of the public to the availability of the goods or products, then the conclusion is unescapable that the purpose is similar as well."
The same opinion also noted that prior opinions of the Committee had frequently held that advertising matter, which includes the firm name of a law firm is improper under the older Canon 27, where the inclusion of the name is not necessary to accomplish the purpose for which the advertisement is intended, (citing Informal Opinion 587). The Committee, however, felt that in advertising for a legal secretary the name of the prospective employer was a necessary element, so that the potential employee may decide whether she wished to apply or not.
Informal Decision 584 by the American Bar Association Committee on Ethics decided that it was improper for an attorney to list his name in an ad seeking the identification of possible witnesses to an accident. Los Angeles County Bar Ethics Opinions 319 decided that it was not improper for a lawyer to advertise for part-time employment with another lawyer or law firm in a median normally circulated within the profession if the advertisement contained no self-laudatory statements or any suggestion that the lawyer is a specialist, except in such fields of law where permitted by the rules. Our own San Diego County Bar Association Ethics Committee Opinion EO 1975-2 declared that an attorney acts in his professional capacity as an attorney in the preparation of tax returns: therefore, any solicitation of such business would be in violation of the Canons of Ethics prohibiting solicitation of professional employment.
Although Informal Opinion No. 862 of the A.B.A. Committee indicated that it would be proper for an attorney seeking part-time work to identify his law firm, the opinion was very concerned about the intent of any such advertisement and was limited in its consideration of whether or not the attorney could use his name in such an advertisement. All other Committee opinions and the clear language of the Rules of Conduct, both California and the A.B.A. Canons, would clearly indicate that anything more than merely identifying the employment position being offered would be unethical, especially if self-laudatory in nature. The example set forth above goes beyond any recognizable exceptions. It contains self-laudatory language concerning the number of clients and the type of legal work done by the law office in question. It is this writer's opinion that said pronouncement as quoted above is unethical advertisement for legal services by the law office in question, and the proper course of conduct for any lawyer or law office seeking employment help in this community's standard, would not include the name of a lawyer or law office seeking the employment and would only describe the nature of the employment offered and the experience and abilities desired of the applicant. Anything more would be unnecessary and improper.
This opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.
EDITOR'S NOTE: State Bar Rule 2 is now found in Rules 2-101 through 2-104.
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.