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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1972-1

An attorney may not write articles of a legal nature concerning matters of interest for a club newsletter if he is identified as an attorney in the publication.

QUESTION:

An attorney has been requested by the editor of a club newsletter to write articles for each monthly publication concerning matters of interest to the membership of a legal nature. The club's membership numbers approximately 20,000 people, mostly of English extraction, and all living in the greater Bay Area. 'The articles will be concerned with matters of general legal interest to the member, such as a comparison of the divorce laws of England and California. The attorney is a member of the State Bar of California and is also a solicitor of the Supreme Court of England and Wales. He will not receive any remuneration for writing the articles, nor will he answer any questions posed to him by individuals regarding specific legal problems or hold out that he will be prepared to answer any such inquiries.

The question presented involves the propriety of identifying himself as the author of the articles by name and/or status as a member of the State Bar and, perhaps, as a solicitor of the Supreme Court of England and Wales.

OPINION:

This Committee concludes that identification of the attorney by name as author does not violate any of the Rules of Professional Conduct of the State Bar of California ("Rules" hereafter). The more difficult question surrounds identification of the author as a member of the Bar.

Rule 2, Section (a) provides:

A member of the State Bar shall not solicit professional employment by advertisement or otherwise.

Without limiting the generality of the foregoing, a member of the State bar shall not solicit professional employment by ...

(2) Using a newspaper, magazine, radio, television, books, circulars, pamphlets, or any medium 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 writing.

Prior opinions rendered under the Rules were examined. No opinion was discovered in which identification of an author in a lay publication as an attorney was permitted.

The Committee on Professional Ethics of the State bar of California held it was proper for an attorney to write a weekly or monthly feature for a newspaper of general circulation for remuneration under his "by-line" covering general topics of real estate law (Opinion No. 1966-6). The opinion is silent as to whether the attorney's name and identification as an attorney were permitted or just his name.

In Opinion No. 200 of the Los Angeles Bar Association (rendered October 21, 1952) it was held that an attorney may permit his name to appear as the author of an article on a legal subject in a lay periodical and may be described as a director of the organization publishing the article, but should not permit reference to his profession.

Rule I directs California lawyers to note the Code of Professional Responsibility of the American Bar Association ("ABA Code" hereafter). The applicable provisions of the ABA Code are contained in the Disciplinary Rules.

The pertinent Disciplinary Rules are as follows:

DR 2-101(A) and (B), which essentially perpetuate the prohibition of the first paragraph of Old Canon 27 against direct or indirect advertising;

DR 2-104(A)(4), which appears to be derived from Old Canon 40, which permitted a lawyer to write articles for publication in which he gives information on the law, but prohibits his acceptance of employment from such publication to advise inquirers in respect to their individual rights.

A survey of the opinions of the Legal Ethics Committee of the American Bar Association relative to Canons 27 and 40 disclosed that it is not unethical for an attorney to write a column for a local newspaper on the law of taxation and trusts, when the article will be general in nature and there will be no answer to individual inquiries. The articles may be signed, however, it would be objectionable for the articles to indicate the author is an attorney, to state that he is a member of a bar association, or to give his post office address (A.B.A. Informal Opinion 1047 (1968)).

Where an attorney wrote an article, upon request, on a legal subject for publication in a legal fraternity magazine, sent his picture (upon request) to be published with the article, and his name was printed under the title, but he was not identified as an attorney, it was held that there was no impropriety in writing the article or sending his picture upon request

(A.B.A. Formal Opinion No. 141).

A lawyer may write articles for publication in lay papers explaining holdings and dissenting opinions in decisions of the United States Supreme Court. However, the lawyer should authorize the use only of his name. His office address should not be given nor should his picture be used. (A.B.A. Informal Opinion No. 743).

The foregoing opinions represent the most pertinent of the A.B.A. opinions relative to writing legal articles for lay publication.

It is the opinion of this Committee that it is improper for an attorney to write articles for lay publication and be identified as an attorney in the publication. This opinion is supported by prior opinion, however, we acknowledge that there are contrary opinions. See, for example, New York County Lawyers' Association, No. 396, April 1951.

While there may be some value to the periodical in having the author identified as an attorney, we believe that the clear purpose of the rule prohibits identification of the author as an attorney.

All opinions of the Committee are subject to the following disclaimer:
Opinions rendered by the Ethics Committee are an uncompensated service of The Bar Association of San Francisco. Opinions are advisory only, and no liability whatsoever is assumed by the Committee or The Bar Association of San Francisco in rendering such opinions, and the opinions are relied upon at the risk of the user thereof. Opinions of the Committee are not binding in any manner upon the State Bar of California, the Board of Governors, any disciplinary committee, The Bar Association of San Francisco, or the individual members of the Ethics Committee.

In using these opinions you should be aware that subsequent judicial opinions and revised rules of professional conduct may have dealt with the areas covered by these ethics opinions.

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