When a lawyer runs for office in a service organization, can his campaign materials identify him as a lawyer and list his legal background?

Plain-English summary

A lawyer active in a national service organization intended to run for district governor, an elective position. The home club would pass a resolution endorsing him and stating his qualifications, and a brochure reciting his background was customarily distributed to members of the organization. He asked two questions: whether a lawyer who buys an ad in a service club's program book may have his name appear as donor with "Esquire," and whether a lawyer-candidate may be identified as a lawyer, with a resume of his legal background, in a resolution and brochures distributed to his constituency.

The Committee answered the first question in the negative, as it had on numerous prior occasions, most recently Opinion 240. On the second, it found a generally recognized exception to the rule against professional self-laudation. DR 2-101(B)(1) permits limited and dignified identification of a lawyer as a lawyer in political advertisements when his professional status is germane to the campaign or a political issue. The rationale is that a candidate may present his professional credentials where they bear on his qualifications for office, and running for office is not solicitation. Relying on ABA opinions (Formal Opinion 74 and Informal Decisions 656, C-230(b), and 795) and Drinker, the Committee concluded the same rationale applies whether the office is public or elective within a service organization, so it would not be improper for the candidate to be identified as a lawyer with a brief resume, provided the material is limited and dignified as DR 2-101(B) requires.

Currency note

This opinion was issued in 1972, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. Lawyer-advertising and publicity restrictions of this kind were substantially changed after Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and later rule revisions; truthful information about a lawyer is now governed by RPC 7.1. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer-candidate say he is a lawyer in campaign materials?

A: Under this opinion, yes, in a limited and dignified way with a brief legal resume, because his professional status is germane to the campaign and running for office is not solicitation.

Q: Why was the "Esquire" program-book ad treated differently?

A: The Committee had repeatedly held it improper for a lawyer buying a program-book ad to appear as donor with "Esquire," most recently in Opinion 240; that use is commercial self-laudation, not germane political publicity.

Q: Did it matter that the office was in a private club rather than public office?

A: No. The Committee held the same rationale applies whether the candidate seeks public office or elective office in a service organization.

Background and rules framework

The opinion applied DR 2-101 and its political-publicity exception (DR 2-101(B)(1)) to a lawyer's campaign for organizational office. In current New Jersey terms, what a lawyer may truthfully say about himself is governed by RPC 7.1, under a framework reshaped by Bates and its successors.

Citations and references

Rules of Professional Conduct:

• DR 2-101 and DR 2-101(B)(1) (political-publicity exception), as in effect 1972; now MR 7.1 / NJ RPC 7.1

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (U.S. 1977), holding (after this opinion) that blanket bans on lawyer advertising violate the First Amendment

Other opinions cited:

• NJ ACPE Opinion 240, 95 N.J.L.J. 511 (1972): "Esquire" donor designation in a program-book ad is improper
• ABA Formal Opinion 74 (1932); ABA Informal Decisions 656 (1963), C-230(b) (1961), 795 (1965): lawyer-candidate publicity

See also

• NJ ACPE Op. 257: A Lawyer's Biographical Sketch on Published Articles
• NJ ACPE Op. 242: A Professional Announcement Offering to Trace Heirs

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp244-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

95 N.J.L.J. 1150, November 9, 1972

OPINION 244

Publicity Candidate for Organization Office

An attorney of this State has been very active in a national service organization. He intends to run for district governor, an elective position in the organization. The home service club must pass a resolution endorsing the candidate and setting forth his qualifications. In addition thereto, a brochure is usually published in which the candidate's background and accomplishments are recited. The brochures are distributed only to members of the service organizations comprising the inquirer's constituency. The inquirer presents the following questions.

1. May a lawyer who purchases an ad in a service club's program book permit his name to appear as the donor with the designation "Esquire"?

2. Is it proper for an attorney who is a candidate for elective office to permit himself to be identified as a lawyer, together with a resume of his legal background, in a resolution and brochures prepared for distribution to his constituency in the organization?

The first inquiry has been answered in the negative by this Committee on numerous occasions, the most recent being Opinion 240, 95 N.J.L.J. 511 (1972).

The second inquiry, however, presents a generally recognized exception to the rule against professional self-laudation. Specifically, the question brings into consideration DR 2-101 of the Disciplinary Rules of the Code of Professional Responsibility of the American Bar Association as adopted by the Supreme Court of New Jersey on July 7, 1971, effective September 13, 1971. The pertinent portion of DR 2-101 states:

(B) A lawyer shall not publicize himself, his partner, or associate 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 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:

(1) In political advertisements when his professional status is germane to the political campaign or to a political issue.

Clearly DR 2-101 permits a lawyer to publicize his professional status where it is germane to a political campaign or issue and is done in a dignified and limited manner. The rationale for this exception to the general rule is the desirability of permitting a lawyer to present his credentials as a professional man where they reflect on his qualifications for political office. In this instance, the lawyer-candidate is not using the publicity then generated to solicit clients, but to offer his background and experience as a reason for his particular competence for office. The fact that a lawyer receiving such publicity may induce lay persons to engage his services as a result thereof becomes secondary to the overriding consideration of informing the constituency. The attorney, however, is forewarned by DR 2-101(B) that the manner must be dignified and limited in nature.

The American Bar Association Committee on Professional Ethics has upheld the propriety of such publicity on numerous occasions. Thus, in Formal Opinion 74 (1932) the Committee was concerned with an attorney seeking an appointment as municipal solicitor. Although the Committee noted in that instance that the position could not be filled by anyone other than an attorney, the rule was subsequently broadened. In Informal Decision 656 (1963), the Committee, in an opinion solicited by an attorney campaigning for district attorney, concluded that it was not improper to send letters on his letterhead to prospective voters and to give his legal background. The opinion cites with approval Informal Decision C-230(b) (1961) which concerned a candidate for Congress identifying himself as a lawyer. In Informal Decision 795 (1965), the Committee refused to condemn statements by a lawyer-candidate which made reference to the "free legal services" he performed, although it did question the relevance of such statements.

The ethics of political publicity is also discussed in Drinker, Legal Ethics 248 (1953), as follows:

The candidate for public office who is a lawyer may advise the public of this when the office sought is one in which his legal training adds to his qualifications to fill the office, but he may not use his candidacy as an excuse for advertising that he is a lawyer.

Where the fact he is a lawyer makes him more qualified for the position, however, he may state he is a lawyer in any and all of his campaign literature and advertisements. Running for office is not solicitation.

The same rationale would apply whether the attorney-candidate is running for public office or elective office in a service organization.

Accordingly, in the present case it would not be improper for the attorney to permit himself to be identified as a lawyer together with a brief resume of his legal background. The attorney should make certain, however, that the resume is limited and dignified as required by the provisions of DR 2-101(B).