|
Syllabus
A lawyer may, with propriety, write articles for publications in which he gives general information upon the law.
A lawyer writing articles on legal subjects for magazines, newspapers, trade journals, and the like may sign his name to such articles, but the words "attorney at law," "lawyer," or other similar designation should not be used therein.
A lawyer writing articles for publications may not accept employment from such publications to advise specific inquirers with respect to their individual rights.
A lawyer writing articles for publications may not, in such articles, give specific legal advice on specific fact situations presented by inquirers to such publications.
A lawyer writing articles for publications should caution and advise the readers thereof that their individual attorneys should be consulted as to specific questions raised by the general information on the law presented in such articles.
A lawyer writing articles for legal periodicals may sign his name to such articles, may have the designation "lawyer" or "attorney at law" appear in connection therewith and may furnish brief biographical data which may be of interest to other lawyers and helpful in appraising the writer's competence and may have his photograph published in connection therewith.
Facts
A trade association requests an attorney to write a monthly column in the association's magazine concerning various legal problems which may confront the members of that association.
Opinion
Canon 40 of the Canons of Professional Ethics, as adopted by the Colorado Supreme Court, reads as follows:
A lawyer may, with propriety, write articles for publications in which he gives information upon the law; but he should not accept employment from such publications to advise inquirers with respect to their individual rights.
This Canon, in its exact language, was adopted by the American Bar Association in 1928. Prior to that time such activity had been held to be improper advertising under Canon 27 and conducive to diminishing the lawyer's personal contact and responsibility to individual clients. See Opinion No. 203 of the New York County Lawyers Association.
Canon 40 now permits such activity if certain safeguards are observed. Borderline cases concerning the application of Canon 40 will involve the question of the lawyer's good faith and the publisher's or sponsor's good faith.
The Committee is of the opinion that a lawyer writing articles on legal subjects for magazines, newspapers, trade journals, and the like may, with propriety, sign his name to such articles, but should not use the words "attorney at law," "lawyer," or other similar designation in connection therewith. The reason for this seems fairly obvious. Such designation might well involve the indirect solicitation of professional employment proscribed by Canon 27.
Moreover, a lawyer writing such articles for publications may not, in such articles, give specific legal advice on specific fact situations presented by inquirers to such publications. The giving of such advice to persons with whom the lawyer had no personal contact or background of the kind so necessary to make legal advice reliable would violate Canon 35, which states that a lawyer's responsibilities and qualifications are individual. A lawyer's relation to his client should be personal.
To assure this necessary personal lawyer-client relationship, the lawyer writing such articles in lay publications should caution and advise the readers thereof to consult their individual attorneys as to specific legal questions raised by his general discussion of the law in said articles. The American Bar Association Committee on Professional Ethics and Grievances has written a number of opinions pointing out the pitfalls involved in the application of Canon 40. See, for instance, Opinions 92, 98, 121, 162, 270 and 273.
One aspect of the problem before us not previously mentioned in this Opinion is discussed in Opinion 273 of the ABA Committee. That Opinion involved the ethical propriety of the action of certain lawyers in rendering opinions to a manufacturers' association for inclusion in bulletins issued to its members.
The Committee discussed the implications in Canon 35, as we have done above, and, in addition, felt that Canon 47 was in point on this fact situation. Canon 47 is as follows: "No lawyer shall permit his professional services, or his name, to be used in aid of, or to make possible, the unauthorized practice of law by any lay agency, personal or corporate."
The Committee did not pass directly on the question as to whether the given practice constituted an unauthorized practice of law. Feeling that such question was properly one for the ABA Committee on the Unauthorized Practice of Law, one of the bulletins involved was submitted to that body for opinion. Its opinion, dated September 27, 1946, held that the issuance of that particular bulletin did constitute an unauthorized practice of the law on the part of the manufacturers' association. As a result, the ABA Committee on Professional Ethics and Grievances, in Opinion 273, held that the lawyers who furnished the opinion contained in the bulletin aided and made possible the unauthorized practice of law by a lay agency, in violation of Canon 47.
Drinker on Legal Ethics (Columbia University Press, 1953) files an interesting caveat to the propriety of a lawyer writing articles for publications in which he gives information on the law. At p. 264 of his treatise, Drinker states:
It is believed that Canon 40 was designed primarily to sanction articles in law magazines or occasional articles in other publications and that it would be difficult, if not impossible, to conceive of a daily, weekly, or monthly column in a newspaper or magazine devoted to the discussion of legal matters which would not, sooner or later, violate Canon 40 and, also, Canons 27, 35, and 47. What the readers of such columns want is not a general discussion such as they can find in a law book or in an article in a law magazine, but something practical which they can apply to their own personal experience. Laymen usually are unable to formulate questions clearly to such a column and a lawyer answering such is apt to follow what he thinks his readers want to hear about and to answer the personal problem which he sees behind their questions. This is what the publishers will ultimately see that they get.
A lawyer writing such articles must see that he does not fall into such pitfalls so eloquently described by Mr. Drinker.
Finally, this Committee sees no impropriety in a lawyer writing an article, comment, case note, or book review for publication in a recognized legal periodical. Of course, his name may, and should, be signed to such articles, and the designation "lawyer" or "attorney at law" may be used. His photograph may also be published. Some legal periodicals give brief biographical data on such a lawyer indicating his experience and expertness in the field which forms the subject of the article. This is likewise permissible because the publication is intended for judges, lawyers, and law students, who are fully capable of judging the intrinsic value of the article. Moreover, no overtone of solicitations of professional services could be present in this situation.
|
