May a lawyer compile and sell to the public a manual of small claims procedures and practices?

Plain-English summary

An attorney asked whether he could offer for sale to the public a manual of small claims procedures and practices. The committee declined to review the merits of the particular publication, saying it would not act as a book-review panel placing its approval or disapproval on attorney-authored works, but it restated the governing standards. It framed the question in the context of Oklahoma law: laymen and lawyers alike may buy treatises, form books, and annotated statutes, and laymen have always been free to file and advocate their own actions, subject to judicial supervision.

The committee reasoned that where the law has created a special vehicle, such as the small claims courts, to let laymen bring their own actions, the bar should do nothing to hamper the public's free use of it. It therefore concluded that an attorney may ethically compile and sell a reference book or procedural manual, provided no aspect of unethical advertising or solicitation appears in the form, content, or marketing of the publication, citing OBA Advisory Opinion No. 108 (1936) and Disciplinary Rule 2-104(A)(4).

The committee drew a line, however. Where a publication, read in context, is written so as to offer professional advice on specific legal problems for which competent advice would require full knowledge of the facts, selling it would be unethical conduct by the attorney-author. Quoting Ethical Consideration 2-5, the committee said a lawyer who writes to educate the public should refrain from giving or appearing to give a general solution applicable to all similar problems, since slight factual changes may require different advice. The committee added that a manual offered to the public must be accurate, and that disciplinary action is warranted against an attorney who publishes irresponsibly prepared material containing false or misleading statements on matters the public reasonably assumes to be within a licensed attorney's competence, citing In Re: Donovan, 178 N.W. 143 (S.Dak. 1920). The professional responsibility of an attorney who publishes such a manual is no less than in handling a client's matter.

Currency note

This opinion was issued in 1971, under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The advertising premises underlying parts of 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 lawyer write and sell a how-to manual for small claims court?

A: Yes. The committee concluded an attorney may ethically compile and sell a reference book or procedural manual, provided the publication and its marketing involve no unethical advertising or solicitation.

Q: What turns a permissible manual into an ethics problem?

A: If the publication, read in context, offers professional advice on specific legal problems, or proposes blanket solutions for all similar problems, the committee said selling it would be unethical, because competent advice depends on the actual facts.

Q: Does accuracy matter for a published manual?

A: Yes. The committee said a manual offered to the public must be accurate, and an attorney who publishes irresponsibly prepared material with false or misleading statements may face discipline.

Background and rules framework

The opinion applied Disciplinary Rule 2-104(A)(4) of the Code of Professional Responsibility (permitting a lawyer to write and publish on legal topics within limits) and Ethical Consideration 2-5 (a lawyer educating the public should avoid giving general solutions applicable to all similar problems). It also relied on OBA Advisory Opinion No. 108 (1936) and on case authority for an attorney-author's responsibility for accuracy. The opinion predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 2-104(A)(4) (Code of Professional Responsibility): limits on a lawyer's communications, including writing and lecturing on legal subjects.
• EC 2-5 (Code of Professional Responsibility): a lawyer who writes or speaks to educate the public should refrain from giving or appearing to give a general solution for all similar problems.

Cases:

• In Re: Donovan, 178 N.W. 143 (S. Dak. 1920), 9 A.L.R. 1497: an attorney-author's responsibility for accuracy in published material.

Other opinions cited:

• Oklahoma Bar Association Advisory Opinion No. 108 (May 22, 1936).

See also

• Okla. Bar Ethics Op. 108: Writing a magazine article on the law
• Okla. Bar Ethics Op. 235: Lawyer publicity about pending litigation
• Okla. Bar Ethics Op. 251: Representing a credit bureau on delinquent accounts

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-262/

Original opinion text

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

Adopted April 23, 1971

OPINION

The Committee on Legal Ethics has been asked for its opinion on the propriety of attorney X's offering for sale to the public a manual of small claims procedures and practices.

The Committee declines to pass judgment upon the merits of the submitted publication and feels constrained to advise the Bar that the Committee will not undertake to act as a book review panel for the purpose of placing its stamp of approval or disapproval on particular attorney authored publications.

The Legal Ethics considerations involved in attorney X's request, however, are of a sufficient importance, as to suggest a need for restatement of the pertinent standards. The question of whether or not an attorney at law may compile and offer for sale a procedural manual which is designed and intended to be read and used by the public in the handling of personal judicial action through the small claims procedures must be answered in the context of the Oklahoma law.

Laymen and lawyers alike are privileged to purchase legal treatises, form books, annotated statutes and other professionally oriented publications. Laymen have always been free in this state to file and advocate their own judicial actions, subject to the supervisory jurisdiction of the judges of our courts acting in the exercise of judicial discretion.

Where a special judicial agency or vehicle, such as the small claims courts, has been created by law for the express purpose of permitting laymen to bring legal action on their own behalf, the Bar should do nothing to hamper the public's free use of such judicial agencies and vehicles for relief.

The Committee, therefore, is of the opinion that an attorney may ethically compile and sell a reference book or a procedural manual, provided that no aspect of unethical advertising or solicitation is present in either the form and content of such a publication or in the manner in which such a publication is marketed to the public. OBA Advisory Opinion No. 108, May 22, 1936. See also Code of Professional Responsibility, Disciplinary Rule 2_104(A)(4).

Where an attorney's publication, when read in context, is written in such a manner that it constitutes the offering of professional advice on specific legal problems, in connection with which competent legal advice would necessarily have to be based on a full knowledge of all the facts actually involved, the sale of such a publication would constitute unethical conduct by the attorney-author.

The publication of a professional treatise, legal article or procedural manual is to be differentiated from those publications, whatever their form, which amount to an attorney's professional analysis of actual legal problems offered to the public for the purpose of proposing carte blanche solutions intended to be acted upon by the laymen readers. As stated in the Code of Professional Responsibility, Ethical Consideration 2_5:

"A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein."

In addition to the foregoing ethical considerations, a manual of practice or of procedure prepared by an attorney and offered for sale to the public must be accurate. Disciplinary action is warranted against an attorney who publishes that which has been irresponsibly prepared and contains false, inaccurate or misleading statements on matters reasonably assumed by the public to be within the professional competency of a licensed attorney. In Re: Donovan, 178 N.W. 143 (S.Dak.1920), 9 A.L.R. 1497.

The professional responsibility of an attorney at law who undertakes the preparation, publication and sale of a procedural manual to the public is no less than that which is required in handling a specific client's legal matters entrusted to him.