May a lawyer in general practice be named as 'counsel' in a savings and loan association's published statement of condition or newspaper advertisement?

Plain-English summary

The committee considered whether it is proper for a firm or single attorney also engaged in the general practice of law to be identified as "counsel" in the periodic statement of condition published by Oklahoma savings and loan associations. It explained that the question had come up several times and that the committee had previously been so divided, given a long-standing practice and the argument that savings and loan counsel differ from counsel for business corporations or banks (because of legal restrictions on such counsel and the resemblance between a statement of condition and an SEC prospectus), that no opinion had been possible.

The committee resolved the question by following the ABA's Standing Committee on Professional Ethics, which in Informal Decision No. 645 (digested in the July ABA Journal at page 686) held without equivocation that publishing the name of the general counsel of a savings and loan association in a newspaper advertisement or statement of condition is prohibited as a violation of Canon 27. The committee therefore concluded that if the name of general counsel of a corporation, bank, or savings and loan association appears in any newspaper advertisement, letterhead, or publication that may reach the general public, it violates both Canon 35 and Canon 27 and is prohibited.

The committee added a limit. The opinion was not to be read as critical of identifying an attorney-director of a corporation as such in a published list of directors where the occupation of all directors is shown. Such a listing should not, however, identify the attorney as "Counsel for the Company" unless he is a full-time employee of the corporation.

Currency note

This opinion was issued in 1965, 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 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. Treat this page as historical context, not current guidance.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 general-practice lawyer be named as "counsel" in a savings and loan's statement of condition?

A: No. Following ABA Informal Decision No. 645, the committee held that publishing general counsel's name in such a statement or advertisement violates Canon 27, and combined with Canon 35 it is prohibited where it reaches the general public.

Q: Did it matter that a statement of condition resembles an SEC prospectus?

A: That argument had divided the committee before, but it ultimately followed the ABA's unequivocal holding and treated the savings and loan situation the same as other corporate or bank counsel.

Q: Could a lawyer who is a corporate director be identified at all?

A: Yes. The committee said an attorney-director may be listed as a director where all directors' occupations are shown, but he should not be labeled "Counsel for the Company" unless he is a full-time employee.

Background and rules framework

The opinion applied Canon 27 of the Canons of Professional Ethics (the bar on advertising and solicitation) and Canon 35, both adopted in Oklahoma, to the publication of a lawyer's name as counsel in a financial institution's public statements. It adopted the reasoning of ABA Informal Decision No. 645. 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): bars advertising and solicitation, directly or indirectly.
• Canon 35 (ABA Canons of Professional Ethics, adopted by the Oklahoma Bar): cited together with Canon 27 in prohibiting publication of counsel's name to the general public.

Other opinions cited:

• ABA Informal Decision No. 645: publishing the name of a savings and loan association's general counsel in an advertisement or statement of condition violates Canon 27.

See also

• Okla. Bar Ethics Op. 232: Lawyer's interest in an abstract company
• Okla. Bar Ethics Op. 207: Insurance company ad announcing a lawyer as its special representative
• Okla. Bar Ethics Op. 219: Announcing availability to serve other lawyers

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-231/

Original opinion text

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

Adopted June 19, 1965

INQUIRY

In the periodic statement of condition published by some of the savings and loan associations in Oklahoma there customarily appears the name of a firm of attorneys or that of a single attorney identified as “counsel.” If such attorney or firm of attorneys is also engaged in the general practice of law, is such a listing proper?

OPINION

This question has been asked of the Committee on several occasions. Because of the long-standing practice and cogent argument to the effect that there is a distinction between counsel for savings and loan asssociations [sic] and counsel for business corporations or even banks, based upon the restrictions placed upon counsel for savings and loan associations by law and the similarity between the “statement of condition” published by the building and loan association and a prospectus submitted to investors pursuant to the rules and regulations of the Securities and Exchange Commission, there has been such a division within the Ethics Committee of the Association (based also upon the awareness by members of the Committee of the high ethical standards of the members of the Bar who support such practice) that no opinion has been possible heretofore.

Fortuitously for the Committee, the exact question has been submitted to the Standing Committee on Professional Ethics of the American Bar Association; and in a recent opinion, designated Informal Decision No. 645, a digest of which appears in the July issue of the American Bar Association Journal at page 686, the ABA Committee held without equivocation that the publication of the name of the general counsel of a savings and loan association in a newspaper advertisement or statement of condition is prohibited as a violation of Canon 27 of the Canons of Legal Ethics.

It is, therefore, our opinion that if the name of the general counsel of a corporation or banking or savings and loan association appears in any newspaper advertisement or letterhead, or in any publication that may reach the general public, it is a violation of Canon 35 and of Canon 27; and, therefore, is prohibited.

This opinion should not be construed as being critical of the practice of identifying an attorney-director of a corporation as such in published lists of directors of any corporation where the occupation of all of the directors is so indicated. Such listing should not, however, identify such attorney as “Counsel for the Company” unless he is a full-time employee of the corporation.