THE PUBLIC RELATIONS COMMITTEE OF THE BAR MAY APPOINT LOCAL OR REGIONAL
REPRESENTATIVES TO ASSIST IN OBTAINING PUBLICITY CONCERNING BAR
ASSOCIATION PROGRAMS AND ACTIVITIES OF A PUBLIC NATURE, BUT SUCH
REPRESENTATIVES MAY NOT ETHICALLY ACT IN MATTERS IN WHICH THEY ARE
PERSONALLY INVOLVED, AND SUCH PUBLICITY SHALL NOT INCLUDE ANYTHING
CONSTITUTING THE ADVERTISING OF THE SERVICES OF PARTICULAR ATTORNEYS.
NEWS STORIES PROCESSED IN THIS MANNER MAY INCLUDE RELEASES GENERATED
BY STATE BAR COMMITTEES COVERING PUBLIC AND CITIZENSHIP ACTIVITIES
OF PARTICULAR ATTORNEYS UNRELATED TO SPECIFIC PROFESSIONAL SERVICES.
CODE PROVISIONS INVOLVED
Canon
2 in discussing the ethical considerations involved in this states
in section EC 2-2:
"The
legal profession should assist laymen to recognize legal problems
because such 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 publications and participation
in seminars, lectures, and civic programs. But a lawyer who participates
in such activities should shun personal publicity."
Sections EC 2-9 and EC 2-10 discuss the traditional "ban against
self-advertising by lawyers, which is subject to certain limited
exceptions" and recognize that certain forms of "assistance"
by the bar are appropriate.
Disciplinary Rule DR 2-101 (B) as to publicity provides:
"A
lawyer shall not publicize himself, his partner, or associate as
a lawyer 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 DR 2-103. This does not prohibit limited and dignified identification
of a lawyer as a lawyer as well as by name:"
Disciplinary
Rule DR 2-103 states:
"A
lawyer shall not recommend employment, as a private practitioner,
of himself, his partner, or associate to a non-lawyer who has not
sought his advice regarding employment of a lawyer."
Subdivision
(D) of this Rule sets forth the following prohibition and qualification:
"A
lawyer shall not knowingly assist a person or organization that
recommends, furnishes, or pays for legal services to promote the
use of his services or those of his partners or associates. However,
he may cooperate in a dignified manner with the legal service activities
of any of the following, provided that his independent professional
judgment is exercised in behalf of his client without interference
or control by any organization or other person:
..
"(4)
A bar association representative of the
general bar of the geographical area in which the association exists."
DR 2-104 (A) prohibits the acceptance of employment resulting from
"unsolicited advice" but excepts certain activities including
those referred to in section DR 2-103 (D) (4). These exceptions
are described as follows:
"(2) A lawyer may accept employment
that results from his participation in activities designed to educate
laymen to recognize legal problems, to make intelligent selection
of counsel, or to utilize available legal services if such activities
are conducted or sponsored by any of the offices or organizations
enumerated in DR 2-103(D)(1) through (S) and to the extent and under
the conditions prescribed therein.
..
"(4) Without
affecting his right to accept employment, a lawyer may speak publicly
or write for publication on legal topics so long as he does not
emphasize his own professional experience or reputation and does
not undertake to give individual advice."
Canon 8, section EC 8-1, as to improving the legal system enjoins
lawyers to render assistance.
"By reason of education and experience, lawyers are especially
qualified to recognize deficiencies in the legal system and to initiate
corrective measures therein. Thus they should participate in proposing
and supporting legislation and programs to improve the system, without
regard to the general interests or desires of clients or former
clients."
QUESTIONS
PRESENTED
The Committee on Public Relations of the state bar is considering
establishment of state-wide representatives of the bar to assist
in providing outlets for state and local bar associations in the
dissemination of bar news. In order to provide liaison with local
newspapers and radio and TV stations these representatives would
be established in some 30 or more areas as a part of the public
relations program of the bar.
If such a system is put into effect the state committee would wish
to advise each representative of the ethical guide lines which would
govern his or her participation. Some of the specific questions
raised are (1) whether the Code prohibits such activity generally,
(2) what kind and type of news stories would be appropriate for
processing, (3) whether news stories might be disseminated as to
citizenship awards or public activities of individual attorneys
not related to the handling of specific professional matters, and
(4) whether such a representative might act in releases involving
himself or his firm.
INTERPRETATIONS
OF CANONS AND CODE PROVISIONS
At the
outset this Committee calls attention that the "wisdom and
value" of the suggested program "is not for this Committee
to consider." See Formal Opinion No. 307. Moreover, as stated
in Informal Opinion No. 151, advertising activities of bar associations
are not objectionable because they may bring business to lawyers.
There
are numerous opinions sustaining advertising and public relations
activities of bar associations. The restrictions imposed require
supervision of a bar association and the avoidance of solicitation
or publicity advertising "particular lawyers." Formal
Opinion 205 dealt with publicity as to bar groups willing to serve
low-income groups at reduced rates. The opinion said:
"We
are of the opinion that the plan here presented does not fall within
the inhibition of the Canon. No solicitation for a particular lawyer
is involved. The dominant purpose of the plan is to provide as an
obligation of the profession competent legal services to persons
in low-income groups at fees within their ability to pay. The plan
is to be supervised and directed by the local Bar Association. There
is to be no advertisement of the names of the lawyers constituting
the panel. The general method and purpose of the plan only is to
be advertised. Persons seeking the legal services will be directed
to members of the panel by the Bar Association. Aside from the filing
of the panel with the Bar Association, there is to be no advertisement
of the names of the lawyers constituting the panel. If these limitations
are observed, we think there is no solicitation of business by or
for particular lawyers and no violation of the inhibitions of Canon
27."
Similar
views were expressed in Formal Opinion No. 227 concerning advertising
of Lawyer Referral services:
"Advertising
of that service must be primarily to give beneficial information
to the lay public and to enable lawyers generally to render a better
professional service. While the fact that incidental benefits may
flow to the members of the profession does not condemn such a plan,
the primary object thereof, if it is to be advertised, must be benefit
to the public and not to the members of the profession or any particular
or selected group thereof. See Opinion 179."
In Formal
Opinion No. 121 the following rule was announced:
"A
local bar association may purchase advertising space in a local
newspaper for the purpose of informing the public how and when to
consult an attorney provided that such advertising is dignified
in tone, does not contain pictures, and does not mention the name
of any individual lawyer."
Various
kinds of publicity and advertising by bar associations have been
upheld, including: Informal Opinion No. 878 (legal check-up program);
Informal Opinion No. 631 (distribution of pamphlets); Informal Opinion
No. 436 (Law Day letters).
DISCUSSION
The
Code of Professional Responsibility in our opinion clearly encourages
bar associations to establish effective machinery for the dissemination
of publicity concerning bar association programs and activities.
This would necessarily include those matters of a public nature
authorized by the bar association including committee and section
reports and activities, statements by bar association officers with
reference to bar association activities and news releases as to
association actions. It would not be ethical in our opinion for
such publicity to include personal professional activities of any
lawyers and if a system of local representatives is established
the local representative should not act in any matter in which he
is personally interested or involved.
The
third question presented as to whether news stories may be disseminated
as to citizenship awards or public activities of individual lawyers
not related to the handling of specific professional matters, involves
considerations of delicacy that do not permit generalizations. So
long as such stories are developed by appropriate state bar committees
and do not relate to specific professional services of attorneys
but instead relate to general citizenship activities, this Committee
believes they may be appropriate. There is a wide range of general
public activities, participation in which the bar should encourage.
Such participation and publicity might well reflect favorably on
the profession. We think, however, that extreme care should be exercised
to avoid releases of this kind which might be interpreted as advertising
the services of particular attorneys. In the gray areas which may
arise in this connection, further and more specific opinions of
this Committee should be requested.
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