May a lawyer let a national magazine publish a letter he wrote about a trial he handled, where the letter's context identifies him as the lawyer in the case?

Plain-English summary

A bar member had been contacted by a national magazine, which wished to publish a letter he had written to a charitable institution the magazine sponsored, concerning a trial he had handled. The letter contained no confidential matters, and all its facts had previously appeared in newspaper accounts of the trial; no "attorney" designation would follow the writer's name. The letter's context, however, would indicate that the writer was the attorney involved in the litigation. The committee answered the inquiry in the negative.

The committee acknowledged that a lawyer, like any citizen, has free-speech and free-press rights, but held that by being afforded the privilege of practicing law he is bound to refrain from public communications whose effect might be to attract lay clients. It applied DR 2-101(A) (no public communication containing professionally self-laudatory statements calculated to attract lay clients) and DR 2-101(B) (a lawyer shall not publicize himself as a lawyer through magazine or other commercial means). It drew on prior opinions (Opinions No. 223, 203, and 272) holding it ethically suspect for a lawyer to permit his name to be used in connection with news about specific representations unless the name is itself germane to the news, and noted ABA Formal Opinion No. 140 and ABA Informal Opinion No. 479 condemning indirect advertising through inspired or unsolicited news items.

The committee recognized that DR 2-101 permits limited, dignified identification of a lawyer in specified contexts (political advertisements where status is germane, required public notices, routine reports of organizations he serves, legal documents he prepares, and legal textbooks), and that a lawyer may sign a letter to a newspaper editor on a subject of general interest where he is not identified as an attorney (ABA Informal Opinion No. 473), with an exception for communications to legal journals circulated to the profession. On the specific facts, because the information had already been reported and the letter would denote the writer's connection with the litigation, the committee held the publication ethically suspect: even with the best of intentions, such identification would be self-laudatory.

In practice

Under this opinion, a lawyer may not permit publication, in a medium of public communication aimed at lay readers, of a letter whose context identifies him as the attorney in a specific piece of litigation he handled, because the committee treated that identification as self-laudatory under DR 2-101. Per the opinion, the magazine itself remains free to publish news comments and editorial viewpoints on the litigation; the constraint is on the lawyer's permitting his identification as counsel. The committee noted a lawyer may sign a letter to a newspaper editor on a matter of general interest where he is not identified as an attorney, and that communications to legal journals are an exception.

Currency note

This opinion was issued in 1975 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. The lawyer-advertising rules of that era (DR 2-101) were substantially changed after the U.S. Supreme Court's decision in Bates v. State Bar of Arizona, 433 U.S. 350 (1977), and current advertising restrictions differ markedly (compare Model Rules 7.1 through 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 the lawyer let the magazine publish the letter if it contained no confidences?

A: No. The committee held that even though the letter contained no confidential matters and the facts had already been reported, publication of a letter whose context identifies the writer as the attorney in the litigation is self-laudatory and proscribed by DR 2-101.

Q: Did it matter that no "attorney" label followed his name?

A: No. The committee found the letter's context would still identify the writer as the attorney involved, which it treated as self-laudatory identification.

Q: Can a lawyer ever sign a published letter?

A: Per the opinion (citing ABA Informal Opinion No. 473), a lawyer may permit his name on a letter to a newspaper editor on a subject of general interest where he is not identified as an attorney, and communications to legal journals circulated to the profession are an exception.

Background and rules framework

The opinion applied DR 2-101(A) and DR 2-101(B) of the Code of Professional Responsibility, governing self-laudatory public communications and publicizing oneself as a lawyer, and listed the limited identifications DR 2-101 permits. It relied on prior OBA Opinions (223, 203, 272), ABA Formal Opinion No. 140, and ABA Informal Opinions No. 473 and 479. It predates the Model Rules and the Bates line of commercial-speech decisions and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 2-101(A) (Code of Professional Responsibility): no public communication containing professionally self-laudatory statements calculated to attract lay clients.
• DR 2-101(B) (Code of Professional Responsibility): a lawyer shall not publicize himself as a lawyer through commercial means, nor permit others to do so on his behalf.

Other opinions cited:

• OBA Opinions No. 203, 223, and 272.
• ABA Formal Opinion No. 140 (1935); ABA Informal Opinions No. 473 and 479.

See also

• Okla. Bar Ethics Op. 223: Lawyers named and quoted in newspaper articles
• Okla. Bar Ethics Op. 235: Lawyer publicity about pending litigation
• Okla. Bar Ethics Op. 272: Brochure advertising a small-claims seminar

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-285/

Original opinion text

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

Adopted April 18, 1975

INQUIRY

May an attorney permit publication in or through a medium of public communication of a letter written by him concerning litigation he had handled which by the context of the letter indicates that the writer is the attorney involved in the litigation?

STATEMENT OF FACTS

A member of the bar has been contacted by a national magazine in connection with such magazine’s request to publish a letter written by the bar member to a charitable institution sponsored by such magazine concerning a trial handled by the bar member. The correspondence in question contained no matters of a confidential nature and all the facts therein had previously been printed in newspaper accounts of the trial. The letter, however, by its context would indicate that the writer was the attorney involved in the litigation, but no attorney designation would have been entered after the name of the writer.

OPINION

The answer to the inquiry is in the negative, for the reasons set out below.

An attorney like any other citizen has the right to make oral and written statements within the ambit of the constitutional protections afforded to the freedoms of speech and of the press. However, in making such statements an attorney, by being afforded the privilege of practicing law, is bound by the ethical considerations of his profession. These require that a lawyer refrain from participating in public communications that contain statements of a nature whose effect might be to attract lay clients.

Disciplinary Rule 2-101(A) provides:

“A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, ‘public communication’ includes, but is not limited to, communication by means of television, radio, motion picture, newspaper, magazine, or book.”

Likewise our ethics prohibit a lawyer from publicizing himself as a lawyer.

Disciplinary Rule 2-101(B) provides:

“A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisments [sic] in the city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103….”

Assuming the communication in question by an attorney is otherwise ethically proper, it is clearly proscribed by the above disciplinary rules.

Previous opinions of this committee in considering the propriety of such publicity have held it to be ethically suspect for an attorney to permit his name to be used in connection with newspaper articles concerning specific legal representations or accomplishments unless the name of the attorney is in itself germane to the news. OBA Opinion No. 223 (1963); OBA Opinion No. 203 (1959).

In OBA Opinion No. 223 (1963), this Committee in discussing the responsibility of a member of the bar when questioned by news reporters concerning litigation which he had handled or is handling said:

“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….

“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 invovled [sic] constitutes one of the rare instances where the names of attorneys were news in their own right.”

In OBA Opinion No. 203 (1959), this Committee stated:

“While it is not an impropriety for attorneys to permit their pictures to be published for outstanding civic service, service to the bar association and in connection with social functions and the like, it is equally unquestionably a violation of this Canon to solicit or permit publicity concerning personal achievements or actions relating to specific legal representation or accomplishments and when doubt exists, such doubt should be resolved in favor of the Canon and the particular doubtful activity not permitted.”

And in OBA Opinion No. 272, 44 Okla. Bar J. 2153 (1973):

“A lawyer must avoid any direct or indirect form of advertising himself and should not inspire laudatory stories in the press or in other forms of communication. Even when such comments do not take place at his instigation, he should endeavor to avoid their repetition.”

The Committee on Ethics and Professional Responsibility of the American Bar Association in condemning indirect advertisement through newspaper comments about causes in which a lawyer has been or is engaged in ABA Formal Opinion No. 140 (1935) said:

“The most worthy and effective advertisement possible, even for a young lawyer …. is the establishment of a well merited reputation for professional capacity and fidelity to trust. This cannot be forced, but must be the outcome of character and conduct …. Indirect advertisement for business by furnishing or inspiring newspaper comments concerning causes in which the lawyer has been or is engaged …. defy the traditions and lower the tone of our high calling and are intolerable.”

IN ABA Informal Opinion No. 479 it was held unethical for an attorney to release unsolicited news items of his professional employment to a newspaper.

Recognizing the right of an attorney to comment on matters of general public interest by a letter to a newspaper is ABA Informal Opinion No. 473 which states,

“An attorney may permit his name to appear on a letter to the editor of a newspaper on a subject of general interest where he is not identified as an attorney.” (Emphasis added.)

One obvious exception which should be made to the above restriction would involve communications to legal journals primarily circulated to members of the legal profession.

Disciplinary Rule 2-101 does permit limited and dignified identification of a lawyer as a lawyer as well as by name as follows:

“1. In political advertisements when his professional status is germane to the political campaign or to a political issue.

“2. In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.

“3. In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.

“4. In and on legal documents prepared by him.

“5. In and on legal textbooks, treatises, and other legal publications, and in dignified advertisements thereof.”

See, also, OBA Opinion No. 272, 44 Okla. B.J. 2153 (1973).

The appropriate consideration by which to judge all such communications by an attorney is described in Drinker, Legal Ethics 218 (1953), where the author in discussing publicity said:

“Where publicity is the normal by-product of able and effective service, whether of a professional or non-professional character, this is a kind of ‘advertisement’ which is entirely right and proper. Clients naturally gravitate to a lawyer who has successfully represented their friends or who has obtained the confidence of the community by effective public service. What is wrong is for the lawyer to augment by artificial stimulus the publicity normally resulting from what he does, seeing to it that his successes are broadcast and magnified. While in hypothetical cases it may often seem difficult to draw the line between what is right and what is not, actually, a lawyer soundly brought up in the law, who wholeheartedly accepts his professional status, will rarely have any difficulty in realizing the difference between the normal by-product of efficient service and the unwholesome results of self-aggrandizement.”

With regard to the specific facts of the inquiry, it seems apparent that all the information sought to be elucidated by the letter has been the subject of previous news comments. The magazine in question is free to publish such news comments and any editorial viewpoint on the litigation, but a letter written by the attorney denoting his connection with such litigation is ethically suspect since even with the best of intentions, such identification would be self-laudatory.