Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
|
Is it proper to publish professional announcements in "nonlegal newspapers?"
Rules 2-101, 2-102 and 2-103 of the Rules of Professional Conduct of the State Bar.1
The opinion of this Committee has been requested with respect to the propriety of a member of the State Bar advising nonlegal newspapers of information relating to the attorney's (1) change of address, termination, or formation of an association, partnership or professional corporation, or (2) elevation or other change of status within a firm. The inquiry indicates that it has been the custom in a particular California community for lawyers to advise the local nonlegal newspapers of such matters by informal means and that mention of such matters, the actual content of which is solely within the control of the newspaper, is generally published in the business section of the newspaper. We understand that no consideration is given by the lawyer for the nonlegal newspaper's publication of the information, that publication of the information is not made as a matter of right, and that such publication is intended for the general information of the nonlegal newspaper's readers. (The term "nonlegal newspaper," as used herein, means a newspaper other than one which is circulated primarily among lawyers.) It should be noted that we express herein no opinion with respect to the propriety of the publication of such information in newspapers circulated primarily among lawyers.
It is the Committee's opinion that it is improper and contrary to the Rules of Professional Conduct for a member of the State Bar to advise a nonlegal newspaper of changes in an attorney's address, professional affiliation, or status. We base our opinion on the following rules and the analysis thereof that follows:
"Rule 2-101. General Prohibition Against Solicitation of Professional Employment.
"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.
"Rule 2-102. Publicity in General.
"(A) 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;...
"(B) A member of the State Bar shall not publicize himself ... or any other attorney . . . 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...
"(C) Except as provided in these rules, a member of the State Bar shall not solicit professional employment by compensating or giving any thing of value to representatives of the press, radio, television, or other communication medium in anticipation of or in return for publicity, of himself or any other attorney."
"Rule 2-103. Professional Notices, Letterheads, Offices and Law Lists.
"(A) A member of the State Bar or firm of which he is a member shall not use professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings or similar professional notices or devices except that the following may be used if they are in modest and dignified form:
"(1) A professional card of a member of the State Bar identifying him by name as a lawyer and giving his addresses, telephone number and the name of his law firm . . . Such cards may be used for identification but may not be published in periodicals, magazines, newspapers, or other media, ...
"(2) A brief professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters ... which may be mailed to lawyers, clients, former clients, personal friends and relatives . ..
"(3) A sign on or near the door of the office and in the building directory identifying the law office ...
"(4) A letterhead of a member of the State Bar identifying him by name and as a lawyer and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under rule 2-106...
"(5) A listing of the office of a member of the State Bar or firm of which he is a member in the alphabetical and classified sections of the telephone directory or directories for the georgraphical area or areas in which the member of the State Bar resides or maintains offices or regularly practices law and in the community directory or guide for one or more cities or counties in which the member of the State Bar resides or maintains offices or regularly practices law;...
"(6) A listing in a law list or legal directory certified by the American Bar Association or by the State Bar of California as being in compliance with appropriate rules and standards...
"(7) A listing of a member of the State Bar identifying him by name and as a lawyer and giving his addresses and telephone numbers, either alphabetically or under a single classification used to designate "attorneys" or "lawyers" in a membership roster, register, directory, or other membership list of a service club, charitable organization, fraternity, school alumni association, business, professional or trade association of which he is a member..."
If advising a nonlegal newspaper of changes of address, professional affiliation, or status, under circumstances where the attorney is aware that publication of such information will follow, constitutes solicitation of "professional employment by advertisement or otherwise," then one need look no further than rule 2-101 of the Rules of Professional Conduct to conclude that such activity violates the Rules of Professional Conduct. But will such activity constitute solicitation of professional employment if the attorney's intent is solely to inform most efficiently those who reasonably need to know such information?
Rules 2-102 and 2-103 of the Rules of Professional Conduct are helpful in determining what may constitute solicitation of professional employment. "[P]ublic communication that contains professionally self-laudatory statements calculated to attract lay clients" is proscribed by rule 2-102(A) of the Rules of Professional Conduct. This proscription might be argued to proscribe advising a nonlegal newspaper of an attorney's "elevation in status" but not a "change in address." Rule 2-102(B) of the Rules of Professional Conduct prohibits newspaper advertisements and "other means of commercial publicity," but we believe this additional prohibition is applicable only to publicity where some consideration is paid or given in return therefor. Rule 2-102 of the Rules of Professional Conduct cautions that the solicitation of professional employment is synonymous with the attraction of lay clients and that solicitation may be inferred from self-laudatory or paid public communication. While rule 2-102 of the Rules of Professional Conduct suggests that an attorney's conduct may be ethically improper without regard to actual intent, it does not apparently proscribe brief, dignified, unpaid announcements to newspapers with respect to an attorney's change in address, professional affiliation or status.
Rule 2-103 of the Rules of Professional Conduct does proscribe such activity and we base our opinion on the convergence of this rule and rule 2-101 of the Rules of Professional Conduct. Rule 2-103 of the Rules of Professional Conduct specifically prohibits the use of professional notices or devices with the exception of certain professional cards, professional announcement cards, signs, letterheads, directories and lists which are in modest and dignified form. This prohibition includes the conduct which is the subject of the request for this opinion and seems intended to reach the solicitation by an attorney of professional employment by or among lay clients.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III. D.)]
| . |