Ethics Opinon 1976-2
February 6, 1976
Subject: REQUEST FOR OPINION CONCERNING A BI-WEEKLY COLUMN IN A LOCAL NEWSPAPER
An attorney has been invited to write a bi-weekly legal column in a local newspaper. The column's purpose would be to aid the public in understanding the law. To accomplish this purpose, the column would consist of general discussions of legal topics, but would not be in the nature of legal advice on specific legal questions. The title of the column would be "The Lawyer Says" and below the title would be printed the attorney's name and the title of "Attorney". Would the writing of such an article be considered unethical behavior?
Yes. The solicitation of professional employment by advertisement or otherwise is prohibited by the Rules of Professional Conduct. The problem with the proposed column is not its content, but its regular identification of its author as an attorney combined with the lack of structural guidelines in accordance with this opinion.
It is the considered opinion of both the California State Bar Association and the American Bar Association that at this time, in the public interest, solicitation of professional employment is to be generally prohibited. This is reflected in Rule 2?101 of the California State Bar Rules of Professional Conduct:
Rule 2-101. A member of the State Bar shall not solicit professional employment by advertisement or otherwise. Conduct permitted by Rules 2-102 through 2-106 shall not be deemed solicitation within the meaning of this rule.
This prohibition includes not only direct solicitation --
Rule 2-102(B). A member of the State Bar shall not publicize himself, his partner, or any other attorney, lawyer or counsel at law as a member of the State Bar through newspaper or magazine advertisements, radio or television 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 Rules 2-103 and 2-104.
but also, indirect solicitation through publicity, which is involved in this particular case.
This does not, however, mean that attorneys may not write articles or books, or otherwise participate in the public forum, with the concomitant publicity. Rule 2-102 of the Rules of Professional Conduct goes on to say:
Nothing herein shall be deemed to prevent the publication in a customary and appropriate manner of articles, books, treatises or other public communications or of dignified advertisements thereof so long as neither such public communications nor the advertisement thereof are primarily directed to attracting lay clients.
Furthermore, the Committee on Professional Ethics of the California State Bar said in Formal Opinion No. 1972-29, 48 Cal.S.B.J. 65 (1973),
An important function of the legal profession is to aid laymen to recognize their legal problems since such problems may not be self?revealing and often are not timely noticed. Attorneys acting under proper auspices should encourage and participate in educational 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 and not to obtain publicity or employment for the participating attorney.
In San Diego County Bar Association Ethics Opinion 1974-3 our committee recognized that an attorney may write a regular legal column in a local newspaper if he did not identify himself as an attorney, but we did not decide the issue whether or not he could if he did so identify himself. Also see Florida State Bar Ethics Opinion 68-30 in 44 Fla. B.J. 405 (1970).
The Committee on Ethics and Professional Responsibility of the American Bar Association has now taken the position that "a lawyer is not subject to discipline under the Code merely because he is identified in connection with any article, as a lawyer or as a member of the bar of a particular state, as this identification serves to validate the information contained in the article."
American Bar Association Informal Opinion No. 1198 cf. American Bar Association Informal Opinion No. 1047 and Informal Opinion No. 1090. We emphasize the use of the word "merely" in the above opinion. Each particular column, or any public communication for that matter, must be analyzed with all its attendant characteristics in order to determine whether it constitutes a violation of the Rules of Professional Conduct. The following elements are relevant to such an inquiry.
Whether or not
1) The attorney is named.
2) The attorney is identified as an attorney.
3) The publication is a lay or legal publication. See American Bar Association Formal Opinion No. 141.
4) The attorney is gratuitously participating as a public service.
5) The attorney's picture accompanies the column.
6) The attorney initially contacted the editor or the editor initially contacted him. See Disciplinary Board Proceedings in Volume 49 No. 6 of the California State Bar Journal.
7) The attorney agrees to turn away clients who contact him because he writes the column.
8) A caution is provided in the column as to the inadvisability of applying the given information to a particular real situation. Se Formal Opinion No. 175 of the Los Angeles County Bar Association Committee on Legal Ethics, and Code of Professional Responsibility Ethical Consideration 2-5 of the American Bar Association.
For an application of several of the above elements in similar situations, see California State Bar Formal Opinion No. 1972-29, 48 Cal. S.B.J. 63 (1973), and Formal Opinion No. 1967-12, 43 Cal. S.B.J. (1968).
There are two additional rules in the Rules of Professional Conduct which prohibit specific conduct with regard to the writing of a legal column. First, Rule 2-102(A) prohibits self-laudatory language:
A member of the State Bar shall not prepare, cause to be prepared, use or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein "public communication" includes, but is not limited to, communications by means of television, radio, motion picture, newspaper, magazine, or book.
Thus, reference to an attorney's legal experience in a lay publication by the attorney or the editor is not permitted. See Formal Opinion No. 181 of the Los Angeles County Bar Association Committee on Legal Ethics. Second, Rule 2-105(A) requires the content of the column to consist of a legal discussion of legal topics of a "general nature" and may not consist of answers in response to specific questions.
Rule 2-105(A). A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated for his services.
See also American Bar Association Formal Opinion No. 92.
The following is a possible format for periodic legal columns in lay publications written by attorneys.
1) The title of the column would not identify the writer as an attorney. Compare "The Lawyer Says" with "Legal Tidbits by (name)".
2) In conjunction with the first article of a series, the editor in an introduction to the column could identify the writer by name and as an attorney or as a member of a bar association. However, a description of his legal experience or the location of his office would not be appropriate. Thereafter, the column could mention his name but not his status as an attorney nor his address.
3) The content of the column should consist of the discussion of legal topics of a "general nature" and would not consist of answers to specific questions.
4) Every article would contain a caution not to attempt to apply the information provided in the column to solve individual problems.
Modification of such a format should necessarily be consistent with the materials of Part III of this opinion. As a final suggestion, "a lawyer who participates in such activities should shun personal publicity". Code of Professional Responsibility Ethical Consideration 2-2 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.