Can a Texas lawyer write an educational newspaper column on taxation that carries a board-certification disclaimer and gives no individual advice?

Plain-English summary

The inquiry asked whether a lawyer may write a newspaper column on taxation to educate the public, where the column would carry a disclaimer about Texas Board of Legal Specialization certification and the lawyer would not give advice or answer questions in it.

The Committee worked through three rules. It found DR 2-103 (recommendation of professional employment) not relevant, because the lawyer would not recommend his own or his partners' or associates' employment. It found DR 2-104 inapplicable, because that rule concerns claims of expertise in patent and trademark law, referral services, and legal directories. As to DR 2-101 (publicity and advertising), the Committee said it was unclear whether the rule even reaches an educational column, but that if it applied, disclosure of the lawyer's name and a disclaimer of expert status under DR 2-101(C) would satisfy it.

The Committee emphasized that the Code encourages public education. It cited EC 2-1 (an important function of the profession is to educate laypersons to recognize their legal problems), EC 2-2 (lawyers should participate in such educational programs, including professional articles for lay publications such as newspaper columns, while shunning personal publicity), and EC 2-5 (the lawyer should avoid giving the impression that a general solution fits all similar problems and should caution readers not to try to solve individual problems from the information given). It concluded that educating the public through a newspaper column, with proper disclaimer and disclosure, is permitted and in fact encouraged, so long as the column avoids implying that one solution fits all fact patterns and cautions readers not to act on the information alone.

Currency note

This opinion was issued in 1985, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The current Texas rules on advertising and lawyer communications are in Part VII (Rules 7.01-7.05), with closest ABA analogs Model Rules 7.1 and 7.2. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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: Could a Texas lawyer write an educational newspaper column?

A: Per the opinion, yes. The Committee concluded that educating the public through a newspaper column, with proper disclaimer and disclosure, is permitted and in fact encouraged under the Code.

Q: Did the advertising rules prohibit such a column?

A: No. The Committee found DR 2-103 and DR 2-104 inapplicable, and said it was unclear whether DR 2-101 even reaches an educational column; if it did apply, disclosure of the lawyer's name plus a disclaimer of expert status under DR 2-101(C) would satisfy it.

Q: What did the Committee say the column should avoid?

A: Citing EC 2-5, the Committee said the column should avoid giving the impression that a general solution applies to all similar fact patterns, and should caution readers not to attempt to solve their individual problems based on the information in the column.

Background and rules framework

The opinion interprets DR 2-101 (publicity and advertising) and DR 2-101(C) (name disclosure and disclaimer of expert status) of the former Texas Code of Professional Responsibility, and explains why DR 2-103 (recommendation of employment) and DR 2-104 (claims of expertise, referral services, directories) do not apply. It relies on the Ethical Considerations EC 2-1, EC 2-2, and EC 2-5 on public education. The closest current concepts are Texas Rules 7.01-7.05 and Model Rules 7.1 and 7.2 on lawyer communications and advertising.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.2 (advertising)
• DR 2-101, DR 2-101(C), DR 2-103, DR 2-104, EC 2-1, EC 2-2, EC 2-5, Texas Code of Professional Responsibility

See also

• TX Ethics Op. 427: Paid Listings on Telephone Book Covers and City Maps
• TX Ethics Op. 428: Listing Fields of Law in a Legal Directory
• TX Ethics Op. 462: Lawyer-Provided Waiting-Room Magazines

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-425/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_425.pdf

Original opinion text

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

QUESTION PRESENTED

A lawyer plans to write a newspaper column on taxation in order to educate the public. The column will contain a disclaimer as to certification by the Texas Board of Legal Specialization and the lawyer will not give advice or answer questions in the column. Is this activity controlled or prohibited by DR 2-101, DR 2-103, or DR 2-104?

DISCUSSION

DR 2-103 deals with the recommendation of professional employment, and is not relevant to the publication of a newspaper article if the lawyer does not recommend his or his partners' or associates' employment.

DR 2-104 is concerned with claims of expertise in the areas of patent law and trademark law, referral services, and legal directories, and is inapplicable to the publication of a newspaper column on taxation.

DR 2-101 covers publicity and advertising. The main thrust of DR 2-101 provides for acceptable methods of advertising. It is unclear whether DR 2-101 would deal with the publication of an educational newspaper column. If it does apply, disclosure of the name of the attorney and a disclaimer of expert status as provided in DR 2-101(C) comply with DR 2-101.

The education of the public is encouraged by the Code of Professional Responsibility. EC 2-1 states that an important function of the legal profession is to educate laymen to recognize their legal problems. EC 2-2 provides that lawyers should encourage and participate in such educational programs, with the desire being to benefit the public rather than to attain publicity and employment for particular lawyers. EC 2-2 lists permissible educational activities, and professional articles for lay publications, which would include newspaper columns, are included. EC 2-2 adds that the lawyer participating in such activities should shun personal publicity.

EC 2-5 cautions that a lawyer in educating the public in the recognition of legal problems should be careful to avoid giving the impression that a general solution is applicable to all similar problems, since the different fact situations obviously vary the proper advice. Therefore, writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information given. The newspaper column should so caution its readers and avoid the dangers of problems referred to above.

Educating the public through a newspaper column, with the proper disclaimer and disclosure, is permitted and in fact encouraged under the Code. The column should carefully avoid giving the public the impression that a general solution is applicable to all similar fact patterns, and should caution laymen not to attempt to solve their problems upon the basis of information contained therein. (9-0)

CONCLUSION

Educating the public through a newspaper column, with the proper disclaimer and disclosure, is permitted and in fact encouraged under the Code. The column should carefully avoid giving the public the impression that a general solution is applicable to all similar fact patterns, and should caution laymen not to attempt to solve their problems upon the basis of information contained therein. (9-0)

Tex. Comm. On Professional Ethics, Op. 425 (1985)