When a reporter names and quotes a lawyer about a case he is handling, is the lawyer responsible for the publicity, and what must he do?

Plain-English summary

The committee considered a metropolitan paper's series of articles on litigants' difficulties in personal injury actions, in which members of the Bar were named and quoted and described with phrases such as "whose firm specializes in damage suits," a lawyer "who represents a number of insurance companies," and "a damage suit lawyer." The question was the lawyer's responsibility when a reporter asks the kind of questions implied in such a series.

The committee said that if the lawyers were cognizant that their names would be used, and particularly that they would be described as they were, their conduct clearly violated Canon 27, which it quoted: indirect advertisements for professional employment, such as furnishing or inspiring newspaper comments or procuring publication of one's photograph in connection with causes the lawyer has handled, along with like self-laudation, are reprehensible, though customary use of simple professional cards is not improper. It quoted the syllabus of ABA Opinion No. 140, that it is professionally improper for an attorney to furnish, inspire, or acquiesce in newspaper comments about causes in which he is or has been engaged, an impropriety accentuated by posed pictures of the attorney and client.

The committee stated it is the lawyer's specific responsibility, when questioned by a reporter about his litigation, to be certain the reporter is advised not to use his name in connection with it. It recommended that the organized Bar and individual members work to make the press understand that an attorney's name should be used only where it is genuinely "news," observing it is difficult to conceive of a recent instance where an attorney's name is news, with the Scopes Trial involving Bryan and Darrow as a rare example. It further recommended that where attorneys' or firms' names do appear, investigation be made into whether the lawyer contributed to it, and that all news media be asked officially to cooperate.

Currency note

This opinion was issued in 1963, 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 and publicity restrictions underlying this opinion no longer reflect current law: the United States Supreme Court held in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), that categorical bans on truthful lawyer advertising violate the First Amendment, and lawyer statements to the press are treated differently today. 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: Was it a violation for the lawyers to be named and quoted in the articles?

A: The committee said that if the lawyers knew their names and the laudatory descriptions would be used, the conduct clearly violated Canon 27's bar on indirect advertising and self-laudation.

Q: What did the committee say a lawyer must do when a reporter asks about his case?

A: It said the lawyer has a specific responsibility to make certain the reporter is advised not to use his name in connection with the litigation.

Q: Was there any situation where using the lawyer's name was acceptable?

A: Only where the lawyer's name is itself genuinely "news." The committee said it is difficult to conceive of a recent such instance, citing the Scopes Trial (Bryan and Darrow) as a rare example.

Background and rules framework

The opinion applied Canon 27 of the Canons of Professional Ethics, adopted in Oklahoma, which condemns indirect advertising and self-laudation, including furnishing or inspiring newspaper comments about a lawyer's causes. It relied on the syllabus of ABA Opinion No. 140. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• Canon 27 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): condemns indirect advertising, including furnishing or inspiring newspaper comments about a lawyer's causes and other self-laudation; customary professional cards are not improper.

Other opinions cited:

• ABA Opinion No. 140: it is professionally improper for an attorney to furnish, inspire, or acquiesce in newspaper comments about causes in which he is or has been engaged.

See also

• Okla. Bar Ethics Op. 203: Cooperating with a newspaper feature on a night-law-school student
• Okla. Bar Ethics Op. 216: Writing or thanking jurors after trial
• Okla. Bar Ethics Op. 219: Announcing availability to serve other lawyers

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-223/

Original opinion text

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

Adopted November 15, 1963

INQUIRY

A metropolitan paper recently carried a series of articles concerning incidents and difficulties encountered by litigants with personal injury actions. Members of the Bar were not only quoted in some detail, but were named and were described as:

“___, whose firm specializes in damage suits,”

“___, of the firm of _____, who represents a number of insurance companies,” and

“___, a damage suit lawyer.”

What is the responsibility of an attorney when a reporter asks him questions such as those asked or implied in this series of articles?

OPINION

If the lawyers involved were cognizant of the fact that their names were to be used in connection with these articles, and particularly if they were cognizant of the fact that they would be described as they were described, their conduct was clearly in violation of Canon 27, which reads in part as follows:

“Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position, and all other like self-laudation, offend the traditions and lower the tone of our profession and are reprehensible; but the customary use of simple professional cards is not improper.”

It is further felt that it is the specific responsibility of a lawyer, upon being questioned by a reporter concerning litigation in which he is or has been engaged, to be certain that the reporter is particularly advised not to utilize his name in connection therewith.

The syllabus of Opinion No. 140 of the Committee on Professional Ethics and Grievances of the American Bar Association reads as follows:

“It is professionally improper for an attorney to furnish, inspire, or acquiesce in newspaper comments about causes in which the attorney is or has been engaged. The impropriety is accentuated by the publication with such comments of posed newspaper pictures of the attorney and his client.”

Further citation of the numerous authorities on this question is unnecessary in view of the clear and concise wording of the Canon and the construction placed thereon by the American Bar Association.

The common practice of newspaper reporters in naming the attorneys involved in litigation, particularly litigation involving personal injuries or domestic problems, should be discouraged by members of the Bar in every way possible. This practice has reached such proportions that young lawyers, and certainly the members of the press, seem to feel that it is perfectly proper, and do so without reservation. It is, therefore, recommended that every effort, both by the organized Bar and the individual members thereof, be made to insure that the members of the press thoroughly understand that only where the name of the member of the Bar is “news,” should it be utilized in reporting on any case.

It is difficult to conceive of any instance in recent years where the name of an attorney is “news.” The Scopes Trial in which the late William Jennings Bryan and the late Clarence Darrow were involved constitutes one of the rare instances where the names of attorneys were news in their own right.

It is also recommended that where names of individual attorneys or firms appear in the news, investigation be made to determine whether or not the member of the Bar in any way contributed thereto; and it is further recommended that all elements of news media be asked officially to cooperate.