Ethics Opinion 086NEW YORK STATE BAR ASSOCIATION Professional Ethics Committee Opinion
Opinion #86 – 07/16/1968 (13-68)
advertisements, holding out, labor, specialization
Overruled (in part) by 331
Topic: Specialization Announcements; Notice to attorneys
Digest: Announcement of labor relations law practice, but not referring to representation of management, is proper
Canons: Former Canons 27, 46
May a New York City firm mail an announcement to the membership of the New York State Bar Association reciting that the firm is “Specializing in the Representation of Management in LABOR RELATIONS LAW”?
It is well recognized that the sending of announcements by lawyers to persons with whom they have “personal relations”, advising of the opening or removal of their offices, the admission of new partners or similar news concerning themselves, does not constitute advertising or the solicitation of professional employment in violation of Canon 27. There has, however, been a difference of opinion among the Committees of the various Bar Associations with respect both to the permissible content of professional announcements and the persons to whom the announcements may be mailed. For years, the American Bar Association condemned the mailing of announcements specifying the branches of the law which a lawyer practiced, (other than recognized specialties such as admiralty, patents, trademarks and copyrights) except only in the special case permitted by Canon 46. Until 1956, Canon 46 of both the American Bar Association and the New York State Bar Association read as follows:”46. Notice of Specialized Legal Service”Where a lawyer is engaged in rendering a specialized legal service directly and only to other lawyers, a brief, dignified notice of that fact, couched in language indicating that it is addressed to lawyers, inserted in legal periodicals and like publications when it will afford convenient and beneficial information to lawyers desiring to obtain such service, is not improper.”Although Canon 46 was strictly construed by the American Bar Association Committee on Professional Ethics (see ABA 251 and opinions cited), the New York associations adopted a more liberal view. In a Joint Opinion of the Committees on Professional Ethics of the Association of the Bar of the City of New York (N.Y. City 686)and of the New York County Lawyers Association (N.Y. County 375) issued in 1947, it was said:”After full reconsideration by the Committees, they are of the opinion that a distinction should be made between announcements to be sent only to lawyers, and announcements to be sent to others. Announcements made to lawyers only, which state the particular branch of law intended to be practiced, are still predominantly informational in character because lawyers are not substantially influenced to employ other lawyers by announcements or impressed by their implications. On the contrary, such announcements have a far greater tendency to impress persons other than lawyers with the obvious implication that the announcer is particularly qualified to handle the type of matter to be specialized in; and hence such announcements constitute improper solicitations of employment when sent to others than lawyers.”In 1956 the American Bar Association amended its Canon 46 to read as follows (The New York State Bar Association Canon 46 remains unchanged):”A lawyer available to act as an associate of other lawyers in a particular branch of the law or legal service may send to local lawyers only and publish in his local legal journal, a brief and dignified announcement of his availability to serve other lawyers in connection therewith. The announcement should be in a form which does not constitute a statement or representation of special experience or expertness.”The present American Bar Association Canon 46 and the New York State Bar Association Canon 46 as interpreted by the New York Joint Opinion quoted above seem to us to express the same rule.It is also our opinion that labor law is a particular branch of the law and that accordingly an announcement sent to lawyers only that a firm is engaged in the practice of Labor Relations Law is not improper. (ABA Inf. 876)Inasmuch as “Labor Law” encompasses questions concerning both labor and management, the employment of the words “the Representation of Management” is disapproved. (ABA Inf. C763)The American Bar Association Canon 46 permits the announcement to be sent “to local lawyers only” and indeed is entitled “Notice to Local Lawyers” but the New York State Bar Association Canon 46 does not so provide. In the view of this Committee, the more liberal Joint Opinion quoted above states the rule in this State and announcements may be sent to lawyers “both known and unknown” to the sender. This would include the members of the New York State Bar Association.