Can a lawyer answer general legal questions from the audience on a radio or TV call-in program, and may the lawyer take on a caller as a client from it?

Plain-English summary

The State Bar Association, working with New Jersey Public Television on a viewer call-in series to educate the public on legal subjects, asked the Committee to reconsider Opinion 148. That earlier opinion had answered two questions in the negative: whether a lawyer guest panelist could answer particular legal questions from the audience, and whether the lawyer could, in response to a letter from an audience member, accept a retainer and establish an attorney-client relationship.

The Committee credited the Association's memorandum that Bates v. State Bar of Arizona and related First Amendment cases (NAACP v. Button, In re Primus) recognized the public's interest in access to legal services and protected lawyer communication that does not mislead or blatantly solicit. Citing a dramatic recognition since Opinion 148 of the profession's responsibility to communicate with the public, the Committee modified Opinion 148 and answered the first question in the affirmative, while keeping its position on the second question unchanged.

The Committee added guidance on the further questions the Association posed. That the lawyer does not know the caller's identity is immaterial, but because the lawyer will not know the full factual background, an answer may be incomplete or erroneous; the Committee said there should be a disclaimer advising that the general answer is based only on the question presented and that the inquirer should seek competent legal advice, regardless of how the program is sponsored. It directed the bar's attention to DR 2-102(C), which proscribed showmanship or self-laudation, and to DR 2-104(A)(2) and (4) on accepting employment arising from such participation.

Currency note

This opinion was issued in 1981, 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. It modified Opinion 148. The rules it applied (DR 2-101, DR 2-102(C), DR 2-104) now correspond broadly to RPC 7.1 and RPC 7.3. Treat this page as historical context, not current guidance.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: Could a lawyer answer general legal questions on a call-in program?

A: Yes, after this opinion. The Committee modified Opinion 148 to permit a panelist to answer general questions, subject to a disclaimer urging the inquirer to seek competent legal advice.

Q: Could the lawyer take a caller or letter-writer on as a client from the program?

A: No. The opinion kept Opinion 148's bar on accepting a retainer and forming an attorney-client relationship in response to an audience member's letter.

Q: Did the caller's anonymity matter?

A: The opinion said not knowing the caller's identity was immaterial, but not knowing the full facts meant answers should be general and accompanied by a disclaimer to seek competent advice.

Background and rules framework

The opinion applied DR 2-101 on advertising, DR 2-102(C) against showmanship and self-laudation, and DR 2-104(A) on accepting employment that arises from a lawyer's public activities, read against the First Amendment commercial-speech cases following Bates. In current New Jersey terms these map onto RPC 7.1 (communications about a lawyer's services) and RPC 7.3 (solicitation). The line the Committee drew was between general public education, now permitted with a disclaimer, and forming a client relationship out of the program, which remained barred.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / NJ RPC 7.1 (communications about a lawyer's services); decided under former DR 2-101, DR 2-102(C)
• MR 7.3 / NJ RPC 7.3 (solicitation); decided under former DR 2-104(A)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977)
• NAACP v. Button, 371 U.S. 415 (1963)
• In re Primus, 436 U.S. 412 (1978)

Other opinions cited:

• NJ ACPE Opinion 148, 92 N.J.L.J. 184 (1969) (modified by this opinion)

See also

• NJ ACPE Op. 482: Advertising Borrowed Expertise on Assistance Programs
• NJ ACPE Op. 477: Attorney and Firm Names in a Business Publication Column
• NJ ACPE Op. 548: Lawyer Free Public Seminars and Newspaper Advertising

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp480-1.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.

107 N.J.L.J. 330, April 16, 1981

OPINION 480

Lawyer Participation in Media Call-in and Write-in Programs Opinion 148 Modified

The New Jersey State Bar Association is currently working with the New Jersey Public Television on a new series of programs which through the vehicle of viewer "call-in" programs will be designed to educate the public on legal subjects. In this connection the Bar Association has requested that the Committee reconsider its Opinion 148, 92 N.J.L.J. 184 (1969), in which we concluded that lawyer participation in such programs is improper. The questions which were presented to this Committee as set forth in Opinion 148, supra, were: Question 1. Inquiry is made as to whether it is ethical for an attorney guest panelist on a television program to answer particular legal questions asked by members of the audience during the program. Question 2. Inquiry is made as to whether it is ethical for such attorney in response to a letter from a member of the audience, to accept a retainer and establish an attorney-client relationship. Both questions were answered in the negative.

The Association in its legal memorandum, has pointed out that The United States Supreme Court has held that the public has an important interest in increasing its availability to legal services. First amendment considerations warrant regulation of the legal profession only when there is a compelling state interest. NAACP v. Button, 371 U.S. 415 (1963), In re Primus, 436 U.S. 412 (1978). In the context of advertising, permissible conduct includes addressing the public in any manner that does not represent the quality of the legal service, nor materially misleads. Bates v. State Bar of Arizona, 433 U.S. 350 (1977), DR 2-101. Guided by Bates and the resulting amendment to the disciplinary rules, involvement by lawyers in the programs described in this inquiry may be considered a protected form of first amendment speech as long as the lawyer does not mislead or blatantly solicit.

Since the publication of our Opinion 148, supra, there has been a dramatic recognition of the responsibility of the legal profession adequately to communicate with the public and of the public's right to be informed on legal subjects. The expression of this new philosophy appears in the Introduction to Public Relations Guide for State and Local Bar Associations (1979 ed.) prepared by the Standing Committee on Association Communications and Division of Communications of the American Bar Association in the following language: Public relations is an integral function of the legal profession, whether we are always aware of it or not. The profession depends, as few others do, on public understanding and approval. This acceptance will become even more vital as public opinion changes, as traditional ways of administering justice are challenged, as minorities and other groups assert their constitutional rights, as the number of lawyers continues to increase, and as the profession itself attempts to resolve new and unprecedented legal and social issues. The legal profession is not an island unto itself. It is in the mainstream of American life. It must be responsive to the human needs of society. The law is neither rigid nor detached from those whom it serves, and neither can members of the legal profession function apart from society. They must reach out, become more visible as part of the social fabric, and help the citizenry to realize more fully that the law serves the people, not the people the law. By promoting a healthier, more personal understanding and appreciation of the law, the legal profession can build a greater confidence in the profession, and a greater respect for the individual attorney and judge. Millions of Americans simply do not know the law, understand the legal process, or comprehend its function in promoting individual rights and social justice.

In the light of the foregoing, we hereby modify our Opinion 148 and answer Question 1 in the affirmative. Our position with respect to Question 2 remains unchanged.

Incidentally to the New Jersey State Bar Association's request for reconsideration of Opinion 148, it also submitted the following questions: 1. Assuming the lawyer does not know the identity of the caller or all the facts of the case, may a lawyer answer questions relative to particular areas of the law "called-in" by listeners of radio programs, viewers of television programs or readers of publications seeking legal information of a general nature? 2. Would the answer to Question 1 be any different if the "call-in" programs or newspaper columns contained a disclaimer stating that the lawyer's answers are for information only, and that a person with a particular problem should seek legal advice? 3. Would the answer to Question 1 be any different if the program was sponsored by, or a lawyer appeared on behalf of, a state or local bar association or its lawyer referral service?

The fact that the lawyer does not know the identity of the caller or the member of the audience or any person who asks the questions is immaterial. However, the fact that the lawyer does not know all the factual background relating to the inquirer's question will likely result in an incomplete or erroneous response which will be a disservice to the inquirer and a discredit to the lawyer and the program of which he is a participant. In our opinion there should be a disclaimer advising the inquirer to the effect that on the basis of the question presented, the general answer appears to be thus and so that for the inquirer's protection it is recommended that he seek competent legal advice. Our position in this regard is the same regardless of how the program is sponsored.

While we now approve lawyer participation in the "call-in" programs, we specifically direct the attention of the bar to restrictions imposed by DR 2-102(C) proscribing the "use of showmanship or self-laudation and the provisions of DR 2-104(A)(2) and (4) relating to the acceptance of employment resulting from a lawyer's participation in such activities and the undertaking to give individual advice.