Can a lawyer let a business client name him as its lawyer in the client's commercial advertising?

Plain-English summary

A company that rented sign boards had prepared a pamphlet for prospective customers and wanted to name its lawyer in it; the lawyer asked whether he could allow that. The committee answered no.

It applied DR 2-101(B), which provided that a lawyer "shall not authorize or permit others to [publicize himself] in his behalf except as permitted under DR 2-103." DR 2-103 was unrelated, and none of the five exceptions in DR 2-101(B) covered the situation. The committee held it did not matter that the idea came entirely from the client and not the lawyer: publicity of the lawyer was the necessary result and would presumably benefit him, so it would be done "in his behalf" regardless of the client's intentions.

Currency note

This opinion was issued in 1975 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held that blanket bans on lawyer advertising violate the First Amendment and reshaped the advertising rules the opinion applies. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Could a lawyer let his business client name him as its lawyer in the client's ads?

A: No. The committee held that doing so publicizes the lawyer in his behalf, which DR 2-101(B) barred and no exception covered.

Q: Did it matter that the client, not the lawyer, wanted to use the name?

A: No. The committee said the source of the idea was irrelevant because the publicity of the lawyer was the necessary result and would presumably benefit him.

Background and rules framework

The opinion applied DR 2-101(B) of the former Code, the general prohibition on a lawyer publicizing himself or permitting others to do so on his behalf. The modern analogs are Model Rule 7.1 (communications about a lawyer's services) and Model Rule 7.2 (advertising), under which truthful, non-misleading advertising is now broadly permitted.

Citations and references

Rules of Professional Conduct:

• DR 2-101(B) (prohibition on self-publicity and permitting others to publicize on the lawyer's behalf); modern analogs Model Rules 7.1 and 7.2

See also

• KBA Ethics Op. E-116: Lawyer-CPA in a Campaign Ad
• KBA Ethics Op. E-161: News Story on a New Lawyer

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-118.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-118
Issued: July 1975

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), before relying on this opinion.

Question:

May a lawyer permit his client to identify him (the lawyer) as the client's lawyer in the client's commercial advertising?

Answer:

No.

Reference:

DR 2-101(B)

OPINION

A company which expects to rent sign boards has prepared a pamphlet for distribution to prospective customers. The company's lawyer wants to know if he may permit the company to identify him by name as the company's lawyer in the pamphlet.

He may not. DR 2-101(B) states "A lawyer shall not authorize or permit others to [publicize himself] in his behalf except as permitted under DR 2-103." DR 2-103 is unrelated to the case in question. DR 2-101(B) itself sets out five exceptions to the general rule, into none of which the case in question falls. It does not matter that the motivation for using the lawyer's name comes entirely from the client and not at all from the lawyer. Publicity of the lawyer is the necessary result. Presumably such publicity would benefit him, so it would be done "in his behalf' regardless of his client's intentions in using his name.

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.