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.
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?
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:
"Law list" is defined by Rule 2-103(A)(6) as follows:
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;
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.
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?
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.
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:
Rule 2-104(D) further states that:
Rule 2-104W) defines a "group" as:
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.
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:
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:
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.