Can a lawyer who also works as a marriage counselor advertise his bar membership and legal training in ads for the counseling business?

Plain-English summary

A clinical psychologist who held a Ph.D. and was also a licensed lawyer practiced marriage counseling and wanted a display ad in the classified phone book setting out his credentials, including membership in the State Bar of Texas and the American Bar Association. He purported not to practice law.

The Committee started from the rule that lawyers may not seek clients by advertisement, but acknowledged that a lawyer may run any proper independent business and advertise it, so long as the ads do not indirectly advertise or feed his law practice; from that, one might think a lawyer not practicing law could mention his bar membership, since it could not feed a non-existent practice (as Opinion 194 had suggested). The Committee then asked what constitutes the practice of law, concluding that it is not limited to court work and that a person practices law when he acts in a fiduciary capacity toward someone counseling with him, gives advice requiring expert legal knowledge, and especially holds himself out as having such knowledge.

On that view, the Committee said some independent fields are so interrelated with law that a licensed lawyer could not avoid giving advice amounting to the practice of law, noting the ABA had treated investment counseling, marriage counseling, and tax service as too nearly related to law to justify a lawyer's advertising in connection with them. It drew the line this way: when a lawyer is engaged in an independent activity that, by its nature, will probably result in his counseling another person on legal matters, and that person is directly or indirectly paying him for the counseling, the lawyer may not refer in his ads for that activity to being a lawyer or to his legal training, even if he does not generally hold himself out as practicing law. This modified Opinion 194. The Committee concluded the psychologist's proposed ad violated Texas Canon 24 and ABA Canon 27. The ruling was 9-0.

Currency note

This opinion was issued in 1962, under the former Texas Canons of Ethics, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which loosened categorical advertising restrictions, though prohibitions on solicitation were not eliminated. Subsequent rule amendments or later opinions may have changed the analysis. 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: Can a lawyer mention his bar membership in ads for a non-law business?

A: Under this opinion, it depends on the business. The Committee said that if the activity will probably result in paid counseling on legal matters, the lawyer may not refer to being a lawyer or to his legal training in those ads, even if he does not generally hold himself out as practicing law.

Q: How did the opinion define the practice of law?

A: The Committee said the practice of law is not limited to going to court; a person practices law when he acts in a fiduciary capacity toward someone counseling with him and gives advice requiring expert legal knowledge, particularly while holding himself out as having such knowledge.

Q: Why was marriage counseling treated as too close to law?

A: The Committee said fields like marriage counseling, investment counseling, and tax service are so interrelated with law that a licensed lawyer could not avoid giving advice amounting to the practice of law, citing the ABA's conclusions to that effect.

Background and rules framework

The opinion interprets former Texas Canon 24 and ABA Canon 27, which prohibited advertising and solicitation, as applied to a lawyer advertising a law-related side business. The modern analogs are ABA Model Rule 7.1, on communications concerning a lawyer's services, and Model Rule 5.7, on responsibilities regarding law-related services.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services), as the modern analog
• MR 5.7 (responsibilities regarding law-related services), as the modern analog
• Texas Canon 24 (former canon)
• ABA Canon 27 (former ABA canon, cited by the opinion)

Other opinions cited:

• Texas Opinion 194: modified by this opinion
• ABA Opinion 260: tax service too nearly related to law for a lawyer's advertising
• ABA App. A 1957, items 41A, 42, and 44: investment and marriage counseling

See also

• TX Ethics Op. 253: Abstract Company 'Property Reports'
• TX Ethics Op. 277: Business-Guide and Directory Listings
• TX Ethics Op. 344: Lawyer's Use of 'Doctor' and 'J.D.'

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-249/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_249.pdf

Original opinion text

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

QUESTION PRESENTED

A clinical psychologist, holding a Ph.D. degree and being a licensed lawyer, is engaged in the practice of Marriage Counseling. In the classified section of the local telephone book he desires to use a block, or display, advertisement setting forth his credentials, including his membership in the State Bar of Texas and the American Bar Association. He purports not to practice law.

18 Baylor L. Rev. 325 (1966)

ADVERTISING
When a lawyer is engaged in an independent activity which will, by its very nature, probably result in his counseling another person regarding matters of law, and when the activity is such that such other person is, directly or indirectly, employing or paying him for such counseling, the lawyer cannot, in his advertisements for the independent activity, refer to the fact that he is a lawyer nor to his legal training even though he is not generally holding himself out as a practicing lawyer. This opinion thus modifies Opinion No. 194.

Canon 24. ABA Canon 27.

There often arises the situation of one who, while purporting not to practice law, is engaged in an activity very close to the practice of law and who wants to advertise his legal background so as to indicate his particular fitness for the independent activity in which he is engaged.

Lawyers are, of course, generally forbidden to seek clients by advertisements on the principle that the legal business of clients should not be solicited commercially. There is little problem, consequently, when one is practicing law or is holding himself out to the public as being engaged in law practice because it has been clearly set out that he cannot advertise another activity so as to solicit, directly or indirectly, legal business for his law practice, nor can he engage in such other activity, as will serve to feed his law business.

On the other hand, a lawyer can engage in any proper business he desires as an independent business; and, if he runs a grocery store, he can run in the newspaper all the grocery store advertisements he wishes. Because of this, it follows that one engaged in an independent business can advertise in it so long as it does not indirectly advertise his, or feed his, law practice. From this, then, one could easily conclude that, where the attorney is not practicing law, he can, in his advertisements of his independent business, refer to his status as a licensed attorney or law school graduate, since this could not possibly feed a non- existent law practice. See Texas Opinion No. 194.

There is, however, the question of what constitutes the practice of law. It is certainly not limited to going to court; the office lawyer who merely counsels is practicing law. The committee feels that one is engaged in the practice of law when he is acting in some fiduciary capacity to the person counseling with him and when he gives to that person advice requiring some expert knowledge of law, and particularly when he is holding himself out to that person as having some expert knowledge of law.

It would not seem possible, for example, for an insurance salesman to advertise himself as a lawyer and to counsel with prospects about the use of insurance in planning their estate and, at the same time, avoid practicing law. By the same token, it would seem impossible that a licensed lawyer can advertise that he is a lawyer and thus hold himself out as having expert knowledge of law and, then, act in a fiduciary capacity with a "client" as "marriage counselor" and, at the same time, avoid giving some advice to that person which amounts to the practice of law. If this conclusion is not correct, it is difficult to understand why it would be of any advantage to advertise membership in the bar.

It can be seen, therefore, that there are some fields which, if engaged in as an independent activity by a licensed lawyer, are so interrelated with the legal profession that it would be impossible for a licensed lawyer to avoid giving some advice which would amount to practicing law. The American Bar Association has held that the fields of investment counseling and marriage counseling are too nearly related to the practice of law to justify a lawyer's advertising in connection with them (ABA App. A 1957␣42, 44 and 41A) and has also reached the same conclusion relative to an income, inheritance, and government tax service. (ABA Opinion 260.)

Our committee would draw the line in this way: When a lawyer is engaged in an independent activity which will, by its very nature, probably result in his counseling another person regarding matters of law, and when the activity is such that such other person is, directly or indirectly, employing or paying him for such counseling, the lawyer cannot, in his advertisements for the independent activity, refer to the fact that he is a lawyer nor to his legal training even though he is not generally holding himself out as a practicing lawyer. (This opinion thus modifies Opinion No. 194.)
The conclusion of the committee is that the advertisement which the clinical psychologist desires to use in the classified section of the telephone book violates Texas Canon 24 and ABA Canon 27. (9-0.)

Tex. Comm. On Professional Ethics, Op. 249 (1962)