ETHICS OPINION 540-1964 ADVERTISING

NUMBER 540

QUESTION

 

One of the small local banks plans to send out monthly literature to its clients, and perhaps stockholders, on Estate Planning,

 

As I am preparing the articles for them they plan to describe the material as being prepared by “John Doe, Attorney” or “Member of New York Bar.”

 

Would this procedure be in conformity with the rules of Ethics of the Bar Association? Should the word “attorney” or the words “member of New York Bar” be omitted?

 

ANSWER.

 

Canon 40 of the Canons of Professional Ethics provides:

 

“40. Newspapers. 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 in respect to their individual rights.”

 

In accordance with this Canon, an attorney may write articles of a general legal nature on estate planning for a lay publication, provided they do not deal with individual inquiries concerning actual situations. If so desired, the articles may appear in form identifying the author by name alone or by name and the words, “Member of the New York Bar.” (See, e.g., our Opinions 264, 484 and 516; and Opinions 184, 270, 324, 501, and 535 of The Association of the Bar of the City of New York Committee on Professional Ethics.)

 

The type of “publication” for which an attorney may properly write articles is not specifically defined In Canon 40, the title of which expressly refers only to newspapers. Nevertheless, Canon 40 must be applied in the light of Canon 29, which provides in pertinent part that: “The lawyer…should strive at all times to uphold the honor and maintain the dignity of the profession…” and Canon 27, which provides in pertinent part that:

 

“It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged” or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer’s position, and all other like self- laudation, offend the traditions and lower the tone of our profession and are reprehensible;….”

 

Thus, under Canon 27, an attorney may not make an unsolicited free distribution of materials he has written to those with whom he has no personal relations of the character contemplated by that Canon, nor may he authorize, inspire or. knowingly permit others to do so. (See our Opinions 498 and 508.)

 

Trade magazines and trade association periodicals, as well as newspapers, have been considered to be within the purview of Canon 40. (See our Opinions 484 and 516; also Opinions 666 and 668 of The Association of the Bar of the City of New York Committee on Professional Ethics.) However, it would ill comport with the traditions and dignity of the bar to reach the same conclusion as to commercial hand bills, trade circulars, market letters or similar materials the essential purpose of which is to advertise a particular product or business. (See our Opinion 466.) The “monthly literature” here in question appears to be much more analogous to unsolicited free promotional materials of that sort than to a trade magazine or trade association periodical,

 

Accordingly, the Committee is of the opinion that It would be improper for an attorney to Identify himself or his profession with a series of articles to be distributed in the manner contemplated.

 

November 4, 1964