Can a law firm publish a 'tombstone' announcement naming the deals it worked on and the clients involved?

Plain-English summary

A firm asked whether it could publish "tombstone announcements" of selected transactions, naming the clients involved, in the style of the sample announcements it attached (a firm noting it acted as legal counsel in a bond financing and in a leveraged buyout).

The Disciplinary Commission concluded a firm may announce, in tombstone announcements like the samples, its participation in selected transactions, with the prior approval of the parties involved. Following the Virginia Bar's Opinion 397 (1983), which permitted advertising the names of present and former clients with prior consent, the Commission held that such announcements must fully comply with Temporary DR 2-101 and must contain the disclaimer called for by Temporary DR 2-102(E). It cautioned that these advertisements have a potential for abuse and should be carefully drawn to comply with all of the Code's provisions on communications about a lawyer's services.

The opinion explained that under Temporary DR 2-101 a lawyer may not make a false or misleading communication about the lawyer's services, so a tombstone announcement's content must be limited to factual data that does not create an unjustified expectation of results and does not compare the quality of the lawyer's services with others'. As to client names, it held that disclosing a client's identity requires the client's prior consent: under DR 4-101, only with the client's consent after full disclosure, pursuant to DR 4-101(C)(1), may the client's identity be revealed.

Currency note

This opinion was issued in 1988, under the former Alabama Code of Professional Responsibility (Temporary DR 2-101, Temporary DR 2-102(E), DR 4-101) and before the Alabama State Bar's January 1, 1991 adoption of the Rules of Professional Conduct and the 2002 Ethics 2000 revisions to the ABA Model Rules. Communications about a lawyer's services are now governed by Rules 7.1 and 7.2, and the duty of confidentiality (which extends to a client's identity) by Rule 1.6. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm name clients and deals in a tombstone announcement?

A: Per the opinion, yes, but only with each named client's prior consent after full disclosure, and the announcement must comply with the advertising rules and carry the required disclaimer.

Q: Why is client consent required just to name them?

A: The opinion concluded that revealing a client's identity implicates the confidentiality rule (DR 4-101); only with the client's consent after full disclosure, under DR 4-101(C)(1), may the identity be revealed.

Q: What content limits apply to the announcement itself?

A: The opinion concluded the content must be limited to factual data, must not create an unjustified expectation of results, and must not compare the quality of the lawyer's services with that of other lawyers, consistent with Temporary DR 2-101.

Background and rules framework

The opinion interpreted Temporary DR 2-101 (no false or misleading communication about a lawyer's services) and Temporary DR 2-102(E) (required disclaimer) of the former Alabama Code, together with DR 4-101 (confidentiality, including a client's identity). Those subjects are now governed by Rules 7.1 and 7.2 (communications and advertising) and Rule 1.6 (confidentiality).

Citations and references

Rules of Professional Conduct:

• Former Ala. Code of Prof. Resp. Temporary DR 2-101 (no false or misleading communication); now Model Rule 7.1
• Former Ala. Code of Prof. Resp. Temporary DR 2-102(E) (required disclaimer)
• Former Ala. Code of Prof. Resp. DR 4-101, DR 4-101(C)(1) (confidentiality; consent to reveal client identity); now Model Rule 1.6

Other opinions cited:

• Virginia Bar Opinion 397 (Sept. 8, 1983): advertising client names with prior consent

See also

• AL Ethics Op. 1992-14: a single disclaimer covering multiple advertisements
• AL Ethics Op. 1993-08: a lawyer's brochure should not state the amount of a damage award
• AL Ethics Op. 1992-23: a law firm funding a solo practitioner's advertising budget

Source

• Landing page: https://www.alabar.org/office-of-general-counsel/formal-opinions/1988-52/
• Original PDF: https://www.alabar.org/assets/2019/02/RO-88-52.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

ETHICS OPINION

RO-88-52

QUESTION:

The question poses the propriety and permissibility of "tombstone announcements" of selected transactions with the approval of the parties involved as per Exhibits "A" and "B" attached hereto.

ANSWER:

In a 1983 opinion the Virginia Bar held that an attorney may advertise the names of clients and former clients with their prior consent. (Opinion 397 of the Virginia Bar, dated September 8, 1983) In reaching this opinion the Virginia Bar interpreted its Disciplinary Rules 2-101(A) and 2-104(A) and ABA Model Standard DR 2-101(B)(16), which are not dissimilar from the current Alabama Temporary Disciplinary Rules. We hold that an attorney may announce, in "tombstone announcements" comparable to those attached hereto as Exhibits "A" and "B", the law firm's participation in selected transactions, with the prior approval of the parties involved. We further hold that such announcements must fully comply with the provisions of Temporary DR 2-101 and must contain the disclaimer called for by Temporary DR 2-102(E). Tombstone advertisements of the type under consideration here have a potential for abuse and should be carefully drawn so as to comply with all of the provisions of the Code of Professional Responsibility relating to communications concerning a lawyer's services.

Temporary DR 2-101 states that a lawyer shall not make or cause to be made a false or misleading communication about the lawyer or the lawyer's services. Thus the content of a "tombstone announcement" must be limited to factual data that, by its presentation, is not likely to create an unjustified expectation of the results the lawyer can achieve and which does not compare the quality of the lawyer's services with the quality of other lawyers' services. But, subject to adherence to the false, misleading and deceptive standards imposed by the Code of Professional Responsibility, such advertisements are permissible.

The Virginia Bar, in its Opinion 397 cited above, properly requires the prior consent of the former or present client before disclosure of the client's name may be included in communications regarding the lawyer's services. It is noted in your request that you contemplate obtaining the prior approval of clients before including their identity in such announcements, and we hold such to be an affirmative requirement pursuant to DR 4-101 of the Code. Only with the consent of the client after full disclosure to them, pursuant to 4-101(C)(1), may the identity of the client be revealed.

AWJ/vf

7/13/88

June 1, 1988

PROFESSIONAL CORPORATION acted as legal counsel for INSURANCE COMPANY as bond insurer in connection with the industrial development financing of INDUSTRIES, INC.

Exhibit "A"

May 31, 1988

PROFESSIONAL CORPORATION acted as legal counsel in connection with the leveraged buyout of LECTRIC MOTOR COMPANY, INC.

Exhibit "B"