Ethics Opinion

Opinion No. 74-4

April 1974

Summary: A lawyer may publish a dignified announcement of his availability to act as consultant to or associate with other lawyers in a particular branch of law in publications intended primarily for the professional use of lawyers. Publication of such a notice in a particular legal journal not more frequently than once a month would be acceptable. [Editor's note: See MBA Opinion 78-4, which reconsidered Opinion 74-4 in light of more recent cases construing the First Amendment as applied to professional advertising: "... DR 2-105(A)(3) ... can no longer be construed to prohibit publication 'more often than once a month in any particular legal journal.'"]

Facts: A lawyer seeks our advice in construing Disciplinary Rule DR 2-105(A)(3), which authorizes the publication of an announcement of availability for consultation in specialized areas of the law "periodically in legal journals." He asks whether the Massachusetts Lawyers Weekly, the Massachusetts Law Quarterly, and various other publications are such "legal journals"; and whether "periodically" means as frequently as the particular journal may be published.

Discussion: DR 6-101(A)(1) of SJC Rule 3:22 states that "A lawyer shall not ... handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it." DR 2-105(A)(3) permits a lawyer to notify the bar of his availability to serve as a consultant or associate in a particular branch of the law, provided the announcement is dignified and does not contain a representation of special competence or experience. This is clearly an exception to the Code of Professional Responsibility's general ban on advertising discussed in EC 2-9, EC 2-10 and DR 2-101(A) and (B). This exception may not be taken as a means of circumventing the ban on the use of "newspaper or magazine notices in publications directed to the general public."
The exception provided for consultation and association notices is intended to enable a practitioner who possesses particular skill and experience in a special branch or area of the law to make that fact known to other lawyers who may have need of such assistance. (The American Bar Association Committee on Law Lists has established over 100 fields of law that may be ethically listed by lawyers in directories such as Martindale-Hubbell.) DR 2-105(A)(3) is not intended as a device whereby lawyers may, in effect, advertise or solicit business by offering to perform for other attorneys those general and non-specialized services that any practicing attorney might be expected to perform.
The term "legal journal" as used in DR 2-105(A)(3) includes, we believe, any magazine, newspaper, or other printed publication published at regular intervals and intended primarily for the professional use of members of the bar. Thus the Massachusetts Lawyers Weekly, the Massachusetts Law Quarterly, the Boston Bar Journal, law reviews, and regular publications of bar associations (both general and specialized) all would qualify as "legal journals."
We believe that the term "periodically" as used in the disciplinary rule in issue is not intended to contemplate publication of an announcement as often as daily or weekly, even if a particular legal journal is published with that frequency. We believe that publication of an announcement not more often than once a month in any particular "legal journal" would not be improper; but that publication of an announcement more often than once a month in a particular "legal journal" might be found to constitute a violation of the disciplinary rule, depending upon the particular circumstances involved.

Permission to publish granted by the Board of Delegates, 1974. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.