Ethics Opinion 201

Ethics Opinion 201

9.30.2007

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinions

Opinion #201 – 09/30/2007 (35-71)

Topic: Identification of corporation’s counsel on corporation’s statements or reports
Digest: A lawyer may not ordinarily permit his name to be listed as counsel in a corporation’s statement published in newspapers; such identification would be proper in reports distributed to stockholders
Code: DR 2-101 (A) and (B) (2) (3); Canon 9

QUESTION

May an attorney permit his name to be listed as counsel, attorney or associate attorney for a corporation or association in its financial statement or report which will either be (1) published in a paper of general circulation, or (2) included in a printed report sent only to stockholders or members?

OPINION

The duty of a lawyer not to advertise or publicize himself, directly or indirectly, includes the obligation not to permit others to do so in his behalf. DR 2-101 (A) (B). However, as stated inABA 285 (1951):”The Canon does not require a lawyer to condemn or prevent every allusion to him by satisfied clients where the purpose of the statement is not to advertise the lawyer but Is obviously and primarily in the interest of the party making it, or of those to whom it is directed, even though some incidental advantage to the lawyer may possibly result.”The Code recognizes that in certain situations the public identification of a lawyer as a lawyer as well as by name is proper.DR 2-101 (B) provides in part as follows:”(B)      A lawyer shall not publicize himself, his partner, or associate as a lawyer through newspaper or magazine advertisements, radio or television announcements, display advertisements in city or telephone directories, or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf except as permitted under DR 2-103.  This does not prohibit limited and dignified identification of a lawyer as a lawyer as well as by name:(2) In public notices when the name and profession of a lawyer are required or authorized by law or are reasonably pertinent for a purpose other than the attraction of potential clients.”(3) In routine reports and announcements of a bona fide business, civic, professional, or political organization in which he serves as a director or officer.”Subparagraph “(2)’ imposes certain specific restrictions on the identification of lawyers in “public notices” which are not stated in Subparagraph “(3)” with respect to “routine reports and announcements”. Whether or not the identification of a lawyer is required or authorized by law, as mentioned in Subparagraph “(2)”, is a question of law upon which this Committee does not pass. The determination as to whether or not it is “reasonably pertinent for a purpose other than the attraction of potential clients” so as to warrant such publication depends upon the facts of each case. Public identification of a lawyer may be proper in connection with the certification of the validity of a municipal bond issue. ABA 290 (1956). It may be included in a published notice of the formation of a bondholders’ protective committee. ABA 100 (1933). It may be stated on legal notices required to be published in connection with legal proceedings. ABA 299 (1961). In each of these cases the identification of the lawyer is of importance not only to the client but to third parties who may be affected.However, the naming of counsel for a corporation or association in its statement of condition published in a newspaper of general circulation would not normally accomplish any purpose of importance either to the corporation or the general public. Its inclusion in a public notice would not be proper. See ABA Inf. 645 (1963); ABA Inf. 645 (a) (1963); ABA Inf. 839 (1965). Of course, as stated in the cited opinions, if a lawyer is a full time employee of the corporation or association no question of advertising Is involved and the restriction would not apply in his case. The opinions cited also make an exception with respect to those directors of a corporation who are lawyers. Where it is the practice of a corporation in listing its directors in a newspaper to identify each of them by his principal occupation, it is not improper for a lawyer-director to be identified by his profession or the name of his firm.Apart from the question of good taste, and the obligation imposed by Canon 9 to avoid even the appearance of impropriety, it would be incumbent upon a lawyer who permits his name and profession to be advertised in the public media to show that his conduct is permissible within the exceptions provided in the Disciplinary Rules.