Ethics Opinion 222

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinions

Opinion #222 – 12/20/1971 (54-71)

Topic: Advertising; Solicitation
Digest: Activities on behalf of indigents, Exception to general rule on newspaper stories
Code: DR 2-101(A) and (B); EC 2-25

QUESTION

Is it proper for an attorney to describe to a newspaper reporter seeking material for a story publicizing the opening of a project to furnish free neighborhood legal services to the poor, the free legal services he personally renders at the project, to pose for a photograph with a fictitious client purporting to portray a free consultation, knowing the photograph, with his name and office address, will be published in the news story?

OPINION

It is improper for a lawyer to encourage or acquiesce in publicity portraying his activities in a manner designed to further his professional interests. ABA 42 (1931); ABA 140 (1935); ABA Inf. 552 (1962).DR 2-101 provides, in part:”(A) A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients;…””(B) A lawyer shall not publicize himself …as a lawyer through newspaper or magazine advertisements …or other means of commercial publicity, nor shall he authorize or permit others to do so in his behalf…”A lawyer may permit himself to be interviewed or photographed as a normal incident to a news story which he does not instigate. N.Y. State 67 (1968); N.Y. State 100 (1969); N.Y. State 119 (1969); N.Y. State 157 (1970). However, he must exercise great care not to use the news item as a vehicle for self-laudation. In Matter of Connelly, 18 App. Div. 2d 446, 478  (1st Dept. 1963), the Court said:” where a newsworthy or public interest article, published in a newspaper or magazine, is in good taste, a charge of a violation of canon 27 is not necessarily made out merely by proof of a lawyer’s co-operation in the publication therein of certain of his activities or achievements.”” …There can be no justification for the participation and acquiescence by an attorney in the development and publication of an article which, on its face, plainly amounts to a self-interest and unethical presentation of his achievements and capabilities.”It has frequently been said that the ban imposed by the canons on professional advertising is not aimed at activities intended to benefit the indigent rather than to obtain remunerative legal business. ABA 148 (1935); ABA Inf. 888 (1965) and ABA Inf. 992 (1967). The line of demarcation between permissible publicity flowing naturally from effective worthy services and improper indirect solicitation of legal business is often difficult to draw. Drinker, Legal Ethics, 218 (1953).However, a lawyer should not use the publicity as a vehicle for promoting his professional status. Preferably posed photographs should be avoided where possible.

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