May a lawyer serve as legal advisor to a physicians' malpractice newsletter, be named as its advisor, write a regular column, and speak at its seminars?

Plain-English summary

A lawyer asked whether he could accept a retainer as attorney for a group of physicians that planned to publish a "Malpractice Newsletter" and to sponsor periodic malpractice seminars for subscribers, primarily doctors and hospital administrators. He posed four questions: whether he could serve as the group's attorney on the technical legal aspects of the articles, whether his name could appear as legal advisor, whether he could contribute a column on general legal principles and current trends, and whether he could participate in the seminars.

The Committee framed the issue as the balance between the profession's obligation to help the public recognize legal problems, reflected in EC 2-2, and a lawyer's duty not to advertise. It said no fixed lines are possible and the test is whether persons of ordinary sensibility would regard the conduct as dignified and in keeping with accepted professional standards, or whether it is essentially self-laudatory.

Applying that test, the Committee was satisfied that, in the abstract, the proposed conduct is permissible. It cautioned at the same time that it could not say the inquirer would not, in carrying out these activities, offend the letter and spirit of DR 2-101, which forbids professionally self-laudatory statements calculated to attract lay clients.

Currency note

This opinion was issued in 1975, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates both the 1984 replacement of the Disciplinary Rules by the RPCs and the line of First Amendment decisions, beginning with Bates v. State Bar of Arizona (1977), that reshaped the law of lawyer advertising. The self-laudatory-advertising concern then in DR 2-101 is now treated under RPC 7.1 and RPC 7.2. 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 Treat this page as historical context, not current guidance.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 lawyer be the named legal advisor to a newsletter aimed at non-lawyers?

A: In the abstract, yes. The Committee found the proposed activities permissible, subject to the caution that the conduct must not become self-laudatory in violation of DR 2-101.

Q: Can the lawyer write a regular legal column and speak at the group's seminars?

A: Yes, in the abstract. The Committee treated writing on general legal principles and participating in seminars as the kind of public legal education encouraged by EC 2-2.

Q: What was the limiting test the Committee applied?

A: Whether persons of ordinary sensibility would regard the conduct as dignified and within accepted professional standards, or whether, in its setting, it is essentially self-laudatory.

Background and rules framework

The opinion weighed EC 2-2, which encourages lawyers to participate in public legal-education programs motivated by public benefit rather than personal publicity, against DR 2-101, which then barred self-laudatory advertising. In current New Jersey terms, communications about a lawyer's services are governed by RPC 7.1 and RPC 7.2.

Citations and references

Rules of Professional Conduct:

• EC 2-2 (encouraging public legal-education activities), as in effect 1975
• DR 2-101 (self-laudatory advertising), as in effect 1975; now MR 7.1 / NJ RPC 7.1 and MR 7.2 / NJ RPC 7.2

See also

• NJ ACPE Op. 332: Availability as a Consultant in the Law Journal and Lawyers Diary
• NJ ACPE Op. 319: Donating Legal Services for a Charity Auction
• NJ ACPE Op. 321: Using "J.D." and "Doctor" in an Academic Position

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp309-1.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.

98 N.J.L.J. 534, June 12, 1975

OPINION 309

Advisor to Medical Malpractice Newsletter and Seminars

The inquirer asks whether it is proper for him to accept a retainer to serve as an attorney for a group of physicians which intends to publish a "Malpractice Newsletter," which also plans to sponsor periodic malpractice seminars for the subscribers who will be primarily doctors and hospital administrators. The following specific questions are asked:

1. May I serve as attorney to the group, particularly with reference to the technical legal aspects of the articles in the newsletter?

2. May my name appear in the newsletter indicating that I am the legal advisor?

3. May I periodically contribute a column concerning general principles of law; current legal trends; and discussing court decisions?

4. May I participate in the seminars sponsored by the group?

The inquirer quite properly calls attention to the language of the appropriate Ethical Consideration, EC 2-2, of the Code of Professional Responsibility which reads:

The legal profession should assist laymen to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include preparation of institutional advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs. But a lawyer who participates in such activities should shun personal publicity.

The balance is, of course, between the obligation of lawyers to educate the public generally on the one hand, and a duty on the part of the lawyer not to "advertise." In maintaining the nice balance between these responsibilities, it is not possible to establish fixed lines, and the test, we think, must be whether persons of ordinary sensibility would regard the conduct of the lawyer as dignified and in keeping with regular and accepted standards of professional conduct, or whether the conduct, in its setting, is essentially self-laudatory.

Because the balance between the proper conduct of an educational program for laymen and the proscription of advertising is so delicate, it is difficult to articulate any really helpful guidelines. As to the four particular questions submitted with this inquiry, we are satisfied that, in the abstract, the proposed conduct is permissible. At the same time, it is impossible for us to say that, in the performance of these activities the inquirer may not offend both the letter and spirit of DR 2-101 which forbids "professionally self-laudatory statements calculated to attract lay clients."