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Syllabus
When a member of the bar is a candidate for non-judicial office his biography and qualifications may be advertised in newspapers and other advertising media. Such advertising must, however, relate solely to the office which he is seeking; he may not directly or indirectly use the election as a device for calling attention to his professional qualifications as a lawyer.
Other lawyers who are not themselves candidates may assist in advertising the qualifications of a candidate for non-judicial office. Lawyers may permit their names to be included in an advertisement listing lawyers who favor a particular candidate and on a letterhead listing lawyers supporting a candidate to be used in making a direct mail appeal for votes. It would, however, be improper for a lawyer to solicit votes or contributions for a candidate on his professional letterhead except from those persons with whom he has an established professional or personal relationship.
Lawyers may not assist in advertising the qualifications of a judge who is a candidate for retention in office unless there is sufficient organized opposition to his retention to permit the judge himself to campaign under the guidelines adopted by the Colorado Supreme Court. In that event lawyers may permit their names to be included in an advertisement listing lawyers who favor the judge's candidacy and on a letterhead listing lawyers supporting the judge to be used in making a direct mail appeal for votes. It would, however, be improper for a lawyer to solicit votes or contributions for the judge on his professional letterhead except from those persons with whom he has an established professional or personal relationship.
Facts
(A) A lawyer is a candidate for non-judicial office. Those managing his campaign desire to purchase newspaper space and television time to advertise his candidacy. The advertisements will include biographical data and a photograph, and will describe the candidate as a lawyer. Is such advertising ethical?
(B) The campaign manager also desires to organize a committee of twenty leading lawyers for the election of the candidate. He proposes (1) to purchase newspaper advertising listing the twenty lawyers and stating that they endorse the candidate; (2) that each of the twenty lawyers should mail at least 100 letters on his own professional letterhead asking for financial support; and (3) that a letterhead be printed which will be entitled "The Committee of Twenty Lawyers for the Election of _________." This letterhead will list each of the endorsing lawyers by name, identifying him as a lawyer, and it will be used in making 10,000 direct mail appeals for votes, each of which will be signed by a facsimile signature of one of the lawyers listed. May the twenty lawyers ethically do this?
(C) The campaign manager for a judge, whose candidacy for retention in office has met sufficient organized opposition to permit the judge to campaign, desires to organize a committee of lawyers to do the things described in paragraph (B) above. May the lawyers ethically participate?
Opinion
(A) The Committee is of the opinion that the candidate may advertise his own qualifications for non-judicial office, one of which is the fact that he is a lawyer.
(B) Among the proposals in paragraph (B) above, all are ethical except the practice of the lawyers sending letters on their professional letterheads asking for support for the candidate to persons with whom the lawyer writing the letter did not have an established professional or personal relationship.
(C) Among the proposals incorporated in paragraph (C) above, all are ethical except the practice of the lawyers sending letters on their professional letterhead asking for support for the judge to persons with whom the lawyer writing the letter does not have an established professional or personal relationship.
Discussion
Activities of the candidate for non-judicial office. A lawyer candidate for non-judicial office is free to advertise his own candidacy, and these advertisements may state that he is a lawyer since this is one of his qualifications for office. ABA Informal Op. 656 (1963). Any elaboration of this, however, such as a discussion of cases he has handled, is forbidden since this has the effect of advertising not only his candidacy but his legal practice. He may not use his candidacy as an excuse for advertising that he is a lawyer. Canon 27, ABA Informal Op. 546 (1962), ABA Informal Decisions 795 (1965), Drinker, Legal Ethics 248 (1953).
The campaign activities of judges under the existing procedure for the selection and retention of judges are dealt with in guidelines adopted by the Colorado Supreme Court and are outside the jurisdiction of the committee.
Activities by lawyer supporting the candidate for non-judicial office. The views of lawyers on the merits or demerits of those who seek public office are at least as well reasoned as those of the average members of our society and such views are entitled to free expression. To hold that an identified group of lawyers may not properly endorse a candidate for political office would be to deprive them of a right of political expression inherent in our system. As a result, lawyers should not be prohibited from allowing their names to be listed either in a newspaper advertisement identifying them as lawyers or on a lawyers' committee letterhead. ABA Informal Decisions 748 (1964) and 825 (1965), Disciplinary Rule 2-101(B), Code of Professional Responsibility.
However, because this practice is subject to abuse where it is used with the intent to advertise the participating lawyers, certain limitations are essential. Any advertisement or lawyers' committee letterhead should identify the lawyers as individuals and not with their firm names; no addresses or other identifying data should be given and the group as a whole should be described merely as a group which supports the named candidate without singling out any particular individuals in the group, although of course if the group consists exclusively of lawyers it may be so designated. ABA Informal Decisions 825 (1965) and 972 (1967).
Although solicitation of votes and contributions by a lawyers' committee on its committee letterhead is not unethical, the solicitation by a lawyer who is not himself a candidate on his professional letterhead is unwarranted except with those persons with whom the lawyer has an established personal or professional relationship. Such a letter obviously focuses the recipient's attention on one lawyer and contains his firm name, his address and telephone number, all of which are immaterial to his endorsement of a candidate or his request for votes or campaign funds. Such a letter necessarily advertises the lawyer in an unacceptable manner. ABA Informal Decisions 626 (1963) and 972 (1967), Wise, Legal Ethics 20.
Activities by lawyer supporting the candidate for judicial office. Since, under guidelines adopted by the Colorado Supreme Court, a judicial candidate is prohibited from campaigning unless his candidacy has met organized opposition, absent such circumstances, it would be improper for lawyers to organize or to serve on a lawyers' committee to support the judge's candidacy.
However, where the candidacy has met organized opposition, lawyers may participate in the judge's campaign in the same manner in which they may ethically participate in the campaign of a candidate for non-judicial office. Nevertheless, while lawyers have an obligation to assist in the selection of well-qualified judges, their activities on behalf of a judge must be conducted in a manner which cannot be construed as an attempt to exert personal influence on the court. Needless to say, any appearance of impropriety must be scrupulously avoided. See generally Code of Professional Responsibility, Ethical Consideration 8-6.
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