May a lawyer write signed newspaper articles commenting on appellate decisions and how they affect the public, and may he comment before the decision is final?

Plain-English summary

The inquiry noted that Rule 42 made it not improper for an attorney to write newspaper articles giving information on the law, while Rule 22 made it improper to give anonymous newspaper interviews about pending litigation. It asked three questions: (1) whether an attorney could write daily-newspaper comment on final, published appellate decisions, pointing out how they affect the rights of the layman; (2) if so, whether the writer could use his own name or a nom de plume; and (3) whether he could comment on a Supreme Court decision after it was handed down but before the mandate issued, that is, before the time for a rehearing petition had run.

The Board answered that, as framed in question 2, if no offer or attempt to advise inquirers is made and the articles are worded and published so as to preclude any implication of advertising, then the procedure in question 1 is not improper, citing Opinions Nos. 45 and 108; and that if the articles are signed, the writer should use his own name and not a nom de plume. On question 3, the Board held that until decisions of the Supreme Court have become final they are still within the class of "pending" litigation defined in Rule 22, so comment on them would be premature and improper.

Currency note

This opinion was issued in 1938, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The advertising restraints applied here predate Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held that categorical bans on lawyer advertising violate the First Amendment, and the rules on trial publicity and lawyer advertising have since been substantially rewritten. Treat this page as historical context, not current guidance.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 the lawyer write newspaper commentary on court decisions at all?

A: Yes, on final, published appellate decisions, if the articles made no offer to advise readers and were worded to preclude any implication of advertising. The Board cited Opinions Nos. 45 and 108.

Q: Could he write under a pen name?

A: No. The Board concluded that if the articles are signed, the writer should use his own name and not a nom de plume.

Q: Could he comment on a decision before it was final?

A: No. The Board held that until a Supreme Court decision becomes final it is still "pending" litigation under Rule 22, so comment would be premature and improper.

Background and rules framework

The opinion applied two canon-era Oklahoma rules: Rule 42, under which writing newspaper articles giving information on the law was not improper, and Rule 22, which treated comment on pending litigation as improper. It relied on Oklahoma Advisory Opinions Nos. 45 and 108. It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Rule 22 (1929 Oklahoma Rules of Professional Conduct): comment on pending litigation is improper.
• Rule 42 (1929 Oklahoma Rules of Professional Conduct): writing newspaper articles giving information on the law is not improper.

Other opinions cited:

• Oklahoma Advisory Opinions Nos. 45 and 108.

See also

• Okla. Bar Ethics Op. 108: Writing a magazine article on the law
• Okla. Bar Ethics Op. 45: Lawyer writing a newspaper column explaining ordinances
• Okla. Bar Ethics Op. 133: Revised professional card in a city directory

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-142/

Original opinion text

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

Adopted May 27, 1938

The Board is in receipt of the following request for an Advisory Opinion:

"Request is hereby made for an advisory opinion upon the following question:

Under Rule 42, it is not improper for an attorney to write newspaper articles for publication giving information upon the law. Under Rule 22, it is improper for an attorney to give newspaper interviews concerning pending litigation anonymously.

1. Would there be any impropriety in an attorney writing for daily newspaper publication, comment upon decisions of appellate courts, which have become final, and have been published in the reporter systems, pointing out how the rights of the layman are affected by the holding of such decision?

2. Presuming the above to be proper, and that no offer or attempt to advise inquirers is made, contrary to Rule 42, would it be improper for the writer to use his name as author of such article, or a nom de plume?

3. Would it be improper to comment upon decisions of the Supreme Court which have been handed down, before the mandate has been sent down? In other words, before time for filing petition for rehearing, or before such petition has been finally passed upon?"

In response:

The Board is of the opinion that, as stated in paragraph numbered 2 above, if no offer or attempt to advise inquirers is made, and if the proposed articles and publication thereof are so worded and published as to preclude any implication of advertising, that then the procedure outlined in paragraph numbered 1 is not improper. See Opinions Nos. 45 and 108. If the articles are signed the writer should use his own name and not use a nom de plume.

It is the further opinion of the Board concerning paragraph No. 3 above that until decisions of the Supreme Court have become final they are still within the class of "pending" litigation defined in Rule 22; and that comment thereon would be premature and improper.