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A LAWYER MAY HAVE DISTRIBUTED IN A LAY PUBLICATION, A DISSERTATION
ON A LEGAL SUBJECT OF GENERAL INTEREST. WHILE HIS NAME AND THE FACT
THAT HE IS A LAWYER MAY BE SHOWN, HIS OFFICE ADDRESS, HOWEVER, SHOULD
NOT BE; NOR SHOULD HE MAKE HIMSELF AVAILABLE, EITHER DIRECTLY OR
INDIRECTLY, TO ANSWER SPECIFIC QUESTIONS OF INDIVIDUALS OR ACCEPT
EMPLOYMENT SHORTLY THEREAFTER WITH REFERENCE TO THE GENERAL SUBJECT
MATTER COVERED BUT, ON THE OTHER HAND, SHOULD URGE THE READERS TO
AVAIL THEMSELVES OF THEIR OWN COUNSEL. AND, UNDER SUCH CIRCUMSTANCES,
THE ARTICLE MAY EVEN BE PERMISSIBLY CO-AUTHORED WITH A LAYMAN.
FACTUAL
SITUATION
A Nebraska lawyer from a specified Nebraska city is a co-author
with a layman of a 43 page booklet on "Estate Planning".
The layman is an extension economist at the University of Nebraska.
The Nebraska Farmer, a lay publication, is planning to publish the
article. This lawyer is concerned about the propriety of his being
named as a co-author with this extension economist, should the Nebraska
Farmer wish to publish the article.
QUESTIONS
PRESENTED
(1) Would the publication of this legal article,
prepared by a lawyer and layman, working together, constitute the
unauthorized practice of law?
(2) Since distribution of this article would be made to the lay
public, may the name of the lawyer be shown and if so, to what extent?
DISCUSSION
Canon
3 of the Code of Professional Responsibility states that "A
lawyer should assist in preventing the unauthorized practice of
law" and DR-301(A) states that "A lawyer shall not aid
a non-lawyer in the unauthorized practice of law". Also, DR
3-103(A) states that "A lawyer shall not form a partnership
with a non-lawyer if any of the activities of the partnership consist
of the practice of law". The basic question, therefore, is
whether or not the publication of a legal article constitutes "the
practice of law". The old Canons of Professional Ethics (35
& 47) forbade a lawyer to allow a layman or a lay organization
to exploit him by using him to engage in unauthorized practice for
a profit and Canon 47 especially was a prohibition against such
conduct (See Formal Opinions 8, 31, 35, 41, 68, 98, 122, 269, 297
and 305). It seems that what constitutes unauthorized practice is
a matter for the Courts in each jurisdiction to decide. It is submitted
that the mere publication of a legal article, where no specific
questions are answered or where no clients are involved, would not
constitute the practice of law. However, if the attorney involved
were to answer specific questions or obtain clients as a result
of the publication, he then would be improperly involved with a
layman in the practice of law and this indubitably would constitute
the unauthorized practice of law. Hence, the mere publication of
this article on "Estate Planning" by this lawyer and layman,
nothing more shown, should not be deemed to be a violation of Canon
3 of the Code of Professional Responsibility.
The
more difficult question is posed by reason of the fact that, at
the Introduction, reference is made by a "1" to the name
of the economist and at the bottom, his position at the University,
and by a "2" to the name AND ADDRESS of the lawyer.
DR 2-101(A)
states that "A lawyer shall not prepare, cause to be prepared
use, or participate in the use of, any form of public communication
that contains self-laudatory statements calculated to attract lay
clients; as used herein, 'publication communication' includes, but
is not limited to, communication by means of television, radio,
motion picture, newspaper, magazine, or book".
Formal
Opinion 290 (1956) states that "The question is always ...
whether under the circumstances, the furtherance of the professional
employment of the lawyer is the primary purpose of the advertisement,
or is merely a necessary incident of a proper and legitimate objective
of the client which does not have the effect of unduly advertising
him". See also, Formal Opinion 285.
The
New York Court (1963) stated that "There can be no justification
for the participation and acquiescence by an attorney in the development
and publication of an article which, on its face, plainly amounts
to a self-interest and unethical presentation of his achievements
and capabilities". Matter of Connelly, 18 App. Div. (2nd) 466,
468, 240 N.Y.S. (2nd) 126, 138.
Accordingly,
it is clear that where the primary purpose or object is to aid the
lawyer in securing professional employment in private practice by
advertising his professional experience, attainments and ability,
we find a violation of DR-2-101(A). See also, Formal Opinions 140,
184, and 285.
On the
other hand, EC2-2 states that "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 participate in seminars, lectures, and
civic programs. But a lawyer who participates in such activities
should shun personal publicity"; and old Canon 40 did provide
that "A lawyer may with propriety write articles for publication
in which he gives information upon the law ***".
Formal Opinions 307 and 179 seem to indicate that there is no ethical
or other valid reason why an attorney may not write articles on
legal subjects for magazines and newspapers. The fact that the publication
is a trade journal or magazine, makes no difference as to the ethical
question involved. But it is here emphasized that it would be unethical
and contrary to the precepts of the Canons for the attorney to allow
his name to be carried in the magazine or other publication AS A
FREE LEGAL ADVISER for the subscribers to the publication. See Formal
Opinions 31, 41, 42, 56, and 162.
Additionally, it was stated in Formal Opinion 273 that "In
any case where a member might well apply the advice given in the
opinion to his individual affairs, the lawyer rendering the opinion
concerning problems common to members of an association and distributed
to the members through a periodic bulletin should specifically state
that this opinion should not be relied on by any member as a basis
for handling his individual affairs, but that in every case he should
consult his counsel. In the publication of the opinion the association
should make a similar statement".
Wise
in his Legal Ethics (Second Edition - 1970) comments on this situation
at pages 155 - 161 as follows, to-wit:
" *** A lawyer either as a writer, or in person, as the preamble
to the canons indicates, no code of rules can be framed which can
be comprehensive of every particular. Like many questions of ethics,
good taste and a genuine desire not to lower the dignity of the
profession must be the principal guides. To this must be added a
sincere desire on the part of the lawyer to render a service and
not to advertise himself".
"So far as a lawyer can control his publisher, the lawyer-author
should permit the advertisement of the book but not the advertisement
of the lawyer".
"On the other hand, commercial publishers employing or contracting
with lawyers, as writers, have a right to advertise, and lawyers
may permit their names to be shown, as attorneys, in advertisements
of such publishers".
"A lawyer may contribute regular monthly articles to a lay
publication provided the articles are on general and not specific
legal questions and are written in a dignified way to give constructive
treatment of the subject and not to advertise the lawyer".
"The principal factors to be guarded against when a lawyer
writes, or makes contact with the general public in other ways,
are the improper advertisement of the lawyer, the giving by him
of specific advice on actual individual legal problems without the
relationship of client and lawyer, and enabling the layman publisher,
radio, or TV station or sponsor of a program to give legal advice".
"While writing articles on general legal subjects, as contracted
to individual specific problems, or appearing on radio or TV in
connection with the discussion of general legal topics, even for
remuneration, is not improper, a lawyer may not answer, even anonymously,
inquiries for advice on individual rights".
"When a lawyer appears on a radio or TV program, he may be
introduced as a lawyer but no reference should be made to his office
address or to his firm, if he is a member of one. There should be
no laudatory comments as to his qualifications or accomplishments".
Hence, it would appear that this lawyer should be permitted to co-author
and have published in the Nebraska Farmer the treatise on "Estate
Planning" and to have it published under their names. However,
the following caveats and restrictions are in order, viz:
(1) While it is proper to refer to him as
an "attorney-at-law", there is no reason why the address
of his office should be given. Unless he expects to benefit personally
and professionally by this publication, his office address is wholly
irrelevant and, therefore, should be deleted.
(2) The lawyer should not attempt to answer
individual specific questions. This is covered in the introduction
to the article wherein the authors state: "The discussion is
necessarily simplified since estate planning requires detailed knowledge
of federal and state laws pertaining to inheritance, gifts and taxes.
It is not a do-it-yourself type of job. Anyone thinking of developing
an estate plan should seek the counsel of an attorney, trust officer
of a bank, or someone skilled in estate planning."
(3) The lawyer must do nothing which would
tend to indicate that he, himself, is "available" for
this type of legal work.
CONCLUSION
Provided
that the address of the lawyer is deleted and provided further that
he does not attempt to answer detailed questions of individuals,
even gratuitously or anonymously, or make himself available therefor,
it would not be ethically improper for this lawyer to have this
co-authored article on "Estate Planning" published in
a lay magazine.
74-8
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