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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1974-2

A periodical which provides a reporting service on current California political campaign laws can list the name of the law firm it has retained as legal counsel if the identification states only the name of the firm in type and size no larger nor more prominent than the adjoining textual materials and contains no language which could be understood to extol the ability or special competence of the firm.

QUESTION:

A new periodical which provides a reporting service on current California political campaign laws for sale to political candidates, campaign organizations and contributors has retained a law firm as legal counsel. May the publication list the name of the law firm in its monthly newsletter and other written communications to subscribers?


OPINION:
Yes, provided the identification states only the name of the firm in type and size no larger nor more prominent than the adjoining textual material and contains no language which reasonably could be understood to extol the ability or special competence of the law firm generally or in the field of campaign law.

DISCUSSION:
Rule 2 of the Rules of Professional Conduct of the State Bar of California states in part as follows:

"a. 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 writings."

Similarly, DR 2-101 of the Code of Professional Responsibility of the American Bar Association provides as follows:

"(B) A lawyer shall not publicize himself, his partner, or associate as a lawyer to 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. (2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients."

A number of American Bar Association opinions have dealt with the question of the propriety of particular publicity. A fair reading of these opinions is that the publicity is proscribed only when, under the circumstances, its primary purpose is the furtherance of the professional employment of the lawyer and it is not a necessary incident of a proper and legitimate objective of the client which does not have the effect of unduly publicizing the lawyer. See A.B.A. Opinions, 184 (1938), 285 (1951), 140 (1935), 290 (1956) and 285 (1951).

Two California Supreme Court decisions point toward the same conclusion. In Millsberg v. State Bar , 6 Cal.3d 65 (1971), the Court publicly reproved a lawyer who had lent himself to "an accomplished plan or design of publicizing petitioners by identifying him as a member of the Bar, lauding his legal expertise, or both" (6 Cal.3d at 74). A review of this case, however, demonstrates both a pattern of repeated publicity and laudation of the lawyer's skills. In the recent case of Belli v. State Bar , 10 Cal.3d 824 (1974), the Court specifically held that the solicitation of lecture engagements without a finding that anything at the lectures constituted prohibited solicitation of legal business could not be proscribed without interfering with the lawyer's First Amendment rights. The Court cited Millsberg , supra , for the proposition that if the bar seeks to discipline an attorney for a communication incident to protected speech, it must demonstrate that the communication was principally directed toward the generation of business for his law practice.

Although the communication involved here does not concern the protected speech of the law firm, it does affect the protected speech of the law firm's client. Since it appears that the identification of the law firm is a necessary incident of a legitimate objective of the client and there is no undue publication of the firm, there is no violation of the Rules of Professional Conduct.

 

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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