Can a Tennessee law firm produce and hand out a manual about the firm, covering its policies, facilities, fees, and attorney biographies, with no advertising disclaimer?

Currency note

This opinion was issued in 1981, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. Subsequent rule amendments or later opinions (including the Board's later brochure opinions, Formal Ethics Opinions 83-F-49 and 85-F-95) revisited this area of guidance. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Plain-English summary

A law firm asked the Board to approve a manual setting out the firm's policies and facilities and biographical sketches of its attorneys. The manual would include the firm's name, address, and telephone number, a map showing accessible parking, photographs and biographical data on all attorneys, and discussions of scheduling work, confidentiality, conflicts of interest, available research tools, and fees (though no fee schedule would be included). The manual would carry no disclaimer. It would be distributed to clients and to others who had made initial contact seeking representation, and the firm stated there would be no effect on its responsibilities if a client who possessed a manual gave it to someone else.

The Board distinguished lawyer advertising, which gives public notice of the availability of services at specified rates to inform the public and assist an informed choice, from soliciting, which connotes a personal entreaty to a particular individual to obtain a particular business transaction. It concluded that the proposed manual and its distribution did not fall within the permissible advertising framework set out in the Code of Professional Responsibility, particularly DR 2-101 and DR 2-103, and the Tennessee Supreme Court's 1978 opinion on the rule governing lawyer advertising. The Board noted that the firm, in its memorandum supporting the request, conceded the applicability of DR 2-101 but overlooked the restrictions it imposed.

Common questions

Q: Can a firm distribute a manual with attorney bios and fee discussion to clients and prospective clients, without a disclaimer?

A: No, as proposed here. The opinion concludes "we do not believe that the production and dissemination of the proposed manual constitute proper professional conduct at this time," because it did not comply with the restrictions in DR 2-101 and DR 2-103.

Q: Does it matter that the manual would only go to clients and people who had already contacted the firm?

A: The Board did not treat that as sufficient. The firm itself stated "there would be no effect on the firm's responsibilities if a client possessing a manual gave it to someone else," meaning distribution was effectively uncontrolled, and the manual still needed to comply with the advertising rule's restrictions regardless of the initial recipient.

Q: What is the difference between advertising and soliciting under this opinion?

A: The opinion explains that "lawyer advertising entails public notice of availability of services at specified rates for purpose of informing the public," while "soliciting... connotes an act of entreaty to obtain a particular business transaction, a personal petition to a particular individual to do a particular thing," citing Koffler v. Joint Bar Assn. and Knobel v. Estate of Eugene A. Hoffman, Inc.

Background and rules framework

The opinion applied Disciplinary Rule 2-101 (advertising) and Disciplinary Rule 2-103 (recommendation of professional employment) of the Tennessee Code of Professional Responsibility, together with the Tennessee Supreme Court's 1978 opinion adopting the rule governing lawyer advertising. The modern correlate is Model Rule 7.2 (advertising), noted here as a navigational cross-reference rather than a rule the opinion itself applied.

Citations and references

Rules of Professional Conduct:

• DR 2-101 (advertising) and DR 2-103 (recommendation of professional employment), Tennessee Code of Professional Responsibility
• Model Rule 7.2 (advertising), modern correlate

Cases:

• In re: Petition for Rule of Court Governing Lawyer Advertising, 564 S.W.2d 638 (Tenn. 1978)
• Koffler v. Joint Bar Assn., 51 N.Y.2d 140, 412 N.E.2d 927, 432 N.Y.S.2d 872 (1980), distinguishing advertising from solicitation
• Knobel v. Estate of Eugene A. Hoffman, Inc., 432 N.Y.S.2d 66 (1980), distinguishing advertising from solicitation

See also

• Tenn. Ethics Op. 83-F-49: Law Firm Brochures (Vacated)
• Tenn. Ethics Op. 85-F-95: Law Firm Brochures

Source

• Landing page: https://www.tbpr.org/ethic_opinions/81-f-17

Original opinion text

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

81-F-17 - Propriety of a law firm producing a manual about the law firm

BOARD OF PROFESSIONAL RESPONSIBILITY OF THE SUPREME COURT OF TENNESSEE

FORMAL ETHICS OPINION 81-F-17

The Board has been asked to issue a formal opinion, pursuant to Section 26 of Rule 9 of the Supreme Court, as to the propriety of a law firm producing a manual setting out the firm's policies and facilities and a biographical sketch of the attorneys. It would include, among other things, the name and address of the firm, telephone number, a map showing accessible parking, photographs and biographical data on all attorneys, and discussions of scheduling work, confidentiality, conflict of interest, available research tools and fees (although no schedule would be set forth). There would be no disclaimer.

The manual would be used to provide information to clients, to others who have made an initial contact seeking representation by the firm, and it is stated, "There would be no effect on the firm's responsibilities if a client possessing a manual gave it to someone else."

Lawyer advertising entails public notice of availability of services at specified rates for purpose of informing the public and assisting the public in making an informed choice. Soliciting, on the other hand, connotes an act of entreaty to obtain a particular business transaction, a personal petition to a particular individual to do a particular thing. See Koffler v. Joint Bar Assn., 412 N. E. (2d) 927, 51 N. Y. (2d) 140, 432 N. Y. S. (2d) 872, 875; and Knobel v. Estate of Eugene A. Hoffman, Inc., 432 N. Y. S. (2d) 66, 68.

In any event, the proposed manual and distribution thereof do not fall within the ambit of permissible advertising as laid down in the Code of Professional Responsibility (Rule 8 of the Supreme Court Rules), particularly DR 2-101 and DR 2-103, and the Court's 1978 Opinion In re: Petition for Rule of Court Governing Lawyer Advertising, 564 S. W. (2d) 638.

In its memorandum in support of its request for a formal opinion, the firm concedes the applicability of DR 2-101, yet overlooks the restrictions set forth therein. For the above reasons, we do not believe that the production and dissemination of the proposed manual constitute proper professional conduct at this time.

This 26th day of August, 1981.

ETHICS COMMITTEE:

Joseph G. Cummings

F. Evans Harvill

John R. Rucker

APPROVED AND ADOPTED BY THE BOARD