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Ethics Opinions from the Bar Association of San Francisco

INFORMAL OPINION 1975-3

It is not ethically proper for a law firm which has been requested by a trade association to be available to render legal services if approached by association members to permit the listing of its name in the association publication for the purpose of advising members of the firm's availability unless the listing was first appropriately certified.

QUESTION:

Is it ethically proper for a San Francisco law firm, which has been requested by a trade association of marine suppliers to be available to render legal services if approached by association members, and which is willing to do so, to permit the listing of its name in an association publication for the purpose of advising members of the law firm's availability?

OPINION
It would not appear ethically proper under the California Rules of Professional Conduct unless the listing is first appropriately certified. It would not appear ethically proper under the American Bar Association Code of Professional Responsibility.

DISCUSSION:

This Committee understands that a trade association of marine suppliers has requested the subject law firm to be available to provide legal services if approached by the association's members. The law firm did not solicit this request. If the law firm permits, the trade association will list its name, and those of other receptive firms throughout the nation, in a house publication that will be distributed to association members for the purpose of advising them of those firms' availability. The trade association is performing this service for its members in order to assist them in locating counsel on short notice. The subject law firm has solicited this Committee's opinion as to whether it may ethically permit the contemplated listing.

It is assumed that the law firm will not pay the trade association for the listing or any other recommendation or identification (see California Rule 2-104(B) and ABA DR 2-103(B)).

Rule 2-103 of the new California Rules of Professional Conduct provides that:

"(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:

". (6 ) A listing in a law list or lega1 directory certified by the American Bar Association or by the State Bar of California as being in compliance with appropriate rules and standards."

"Law list" is defined by Rule 2-103(A)(6) as follows:

"A law list is every list of attorneys at law, legal directory or instrumentality maintained or published primarily for the purpose of circulating or presenting the names of attorneys at law as probably available for professional employment."

As the listing in question would be used to advise association members of the firm's availability, it would appear to be a "law list" within the meaning of the California Rules. This Committee is therefore of the opinion that the subject law firm must obtain certification of the listing by the ABA or by the California State Bar in order to qualify it as ethically proper thereunder.

The ABA Code of Professional Responsibility, through Disciplinary Rule 2-102, also prohibits a lawyer's use of professional notices or devices, with specified exceptions. The exception relating to law lists DR 2-102(A)(6) allows;

"(a) listing in a reputable law list or legal directory giving brief biographical and other informative data. A law list or directory is not reputable if its management or contents are likely to be misleading or injurious to the public or to the profession. A law list is conclusively established to be reputable if it is certified by the American Bar Association as being in compliance with its rules and standards."

Although the ABA Code does not define the term "law list" it would appear that the listing in question is a "law list" and does not qualify as reputable within the meaning of the Code, in consequence of Informal Opinion 1050 (1968) of the ABA Committee on Ethics. The inquiring attorney in that opinion had represented several clients in matters involving the Selective Service Law, and was subsequently asked by the Central Committee for Conscientious Objectors if he would be willing to be listed by the Committee as a "cooperating attorney." If so, the Committee periodically would refer men needing help to him.

The ABA Committee on Ethics found former Canon 27, relating to advertising, and the same Committee's Informal Opinion 116, in which it defined a "reputable law list" as one "circulating among lawyers and not intended to draw the attention of the general public", to be controlling. Since the listing of the attorney therein was intended to draw the attention of nonlawyers, the Committee concluded that it could not qualify as a reputable law list under the ABA Code.

The ABA Committee on Ethics continues to rely on Opinion 116's definition of a reputable law list, even after adoption of the new ABA Code (see e.g., Informal Opinion 1245 (1972). As the trade association publication in question also is intended to draw the attention of nonlawyers, it is the opinion of this Committee that the subject law firm's listing would not appear ethically proper under the ABA Code's law list exception.

It should be noted, however, that the ABA Committee on Ethics has acknowledged on numerous occasions that the responsibility for determining the reputability of an individual law list is generally that of the ABA Committee on Law Lists, and accordingly has encouraged the direction to the latter Committee. The subject law firm might therefore consider it appropriate to solicit certification of its listing by the ABA Committee on Law Lists, notwithstanding this Committee's opinion.

QUESTION:

Is it ethically proper for the same San Francisco law firm to permit said trade association to identify the law firm as willing to provide legal services, when the trade association is so requested by an individual association member?

OPINION:

It would appear ethically proper under the California Rules of Professional Conduct, subject to the condition stated herein below. It would not appear ethically proper under the ABA Code of Professional Responsibility.

DISCUSSION:

In situations where it is ethically proper for a lawyer to furnish legal services to members of a group, California Rule 2-104(D) provides that:

"Nothing in this rule shall prohibit a statement in response to individual inquiries as to the identity of the member or members of the State Bar rendering or to render the services giving the name or names, addresses and telephone numbers of such member or members."

Rule 2-104(D) further states that:

"The furnishing of legal services by a member of the State bar pursuant to an arrangement for the provision of such services to the individual member of a group, as herein defined, at the request of such group, is not of itself in violation of these Rules of Professional Conduct if the arrangement (meets those procedural requirements described in Rules 2-104(D)(1) and (2))."

Rule 2-104W) defines a "group" as:

".a professional association, trade association, labor union or other nonprofit organization or combination of persons, incorporated or otherwise and including employees of a single employer, whose primary purpose and activities are other than the rendering of legal services."

Unfortunately, the ability of this Committee to render a definitive opinion in this matter is hampered by the novelty of the group legal service provisions and scarcity of interpretive precedent. It would appear that, as the trade association has requested the subject law firm to be available to provide legal assistance to association members, and as the law firm would furnish those services in response to such request, the request provision quoted herein above is complied with. The following additional facts must be established, however, in order to conclude that the arrangement is a group legal services arrangement within the meaning of Rule 2-104.

  1. The trade association is a "group", i.e., its primary purpose and activities are other than the rendering of legal services.
  2. The arrangement in question complies with the procedural requirements of Rule 2-104(D) (1) and (2).
  3. The subject law firm will comply with the informational filing requirements of Rule 2-104(D).

This Committee is of the opinion that, if each of these additional facts is established, it would appear ethically proper under the California Rules for the subject law firm to permit said trade association to identify the law firm as willing to provide legal services, when the trade association is so requested by its members.

The ABA Code allows, as does California, identification by name of the lawyer providing legal services to a group, in response to inquiries by members of the group. Rule 2-101 (B) states that:

"A lawyer shall not publicize himself, or his partner, or associate, or any other lawyer affiliated with him or his firm, 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 that a lawyer recommended by, paid by, or whose legal services are furnished by, any of the offices or organizations enumerated in DR 2-103 (D) (1) through (5) may authorize or permit or assist such organization to use such means of commercial publicity, which does not identify any lawyer by name, to describe the availability or nature of its legal services or legal service benefits. This rule does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:

" - - - (6) In private communications by any of the offices or organizations enumerated in DR 2-103 (D) (1) through (5), along with the biographical information permitted under DR 2-102 (A) (6), in response to inquiries from a member or beneficiary of such office or organization."

While the ABA Code does not formally define "office" or "organization", DR 2-103 (D) describes six groups properly includable as an "organization" within the meaning of DR 2-101 (B). None of the six appears to reflect the character of the trade association in question. The trade association's identification of the subject law firm therefore would not appear supportable under DR 2-101 (B) (6).

It is recognized that Rule 2-101 (B) does not expressly limit properly includable organizations to those described therein. This Committee believes nevertheless that the context and purpose of the identification in question, when measured by the Code's general opposition to advertising of an attorney by name, suggest that such identification is improper. The Committee notes that a search of the informal opinions of the ABA Committee on Ethics has disclosed no opinion upholding the permissibility of a similar identification.

This Committee is therefore of the opinion that it would not appear ethically proper under the ABA Code of Professional Responsibility for the subject San Francisco law firm to permit the trade association to identify the law firm as willing to provide legal services, when the trade association is so requested by an individual association member.

 

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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