Ethics Opinion

Opinion No. 75-6

June 1975

Summary: Members of the bar should not sponsor advertisements in any publication, whether directed solely to the legal profession or not, offering congratulations to members of the judiciary or to court officials where the attorney sponsoring such advertisements is identified by name or otherwise. Such advertisements where the sponsor is identified as "anonymous" would not be prohibited.
Facts: Attorneys, particularly those with active trial practices, occasionally sponsor advertisements in a publication directed solely to the profession in which advertisements, congratulations, praise and expressions of appreciation are offered to the judges and court officials of particular courts of the commonwealth. In these advertisements, the sponsoring attorneys are identified by name and office address.

Discussion: The practice discussed in this opinion is covered by Canons 2 and 9 of the Code of Professional Responsibility. Disciplinary Rule DR 2-101(B) specifically prohibits attorneys from publicizing themselves through newspaper advertisements except in the limited circumstances listed therein, none of which relate to the practice which concerns us here. In fact, DR 2-101(B) would seem to be aimed directly at the activity described above. Whatever "civic" or "professional" gloss may be placed on these advertisements as expressions of appreciation to the judiciary for a job well done, they amount to little more than an opportunity for the subscribing lawyers to advertise themselves and to do so in a manner inconsistent with the strictures of the code. ABA Formal Opinion No. 107 (March 10, 1934) held it improper for an attorney to publish Christmas greetings in a newspaper where he was identified as an attorney and had made some contribution to the newspaper for running the "Greeting." Several prominent individuals, including public officials, had signed the greeting and were identified as lawyers.
The committee held this an improper reference to their professional standing. Further, such publication was held improper because it was not in a "reputable law list." Mere restriction of a publication to the legal community does not convert it into a "reputable law list" and the identification of the sponsoring attorneys in the activity under discussion here is as clearly an improper reference to professional standing as that in the cited opinion. In accord, see ABA Formal Opinion No. 293 (November 13, 1957) and Formal Opinions No. 59 (December 14, 1931) and No. 43 (September 17, 1931).
The fact that the publication is restricted to the legal profession should in no way affect the result. First, there is no guarantee that the publication will not be seen by laymen, indeed some of the very court officials being praised may well be laymen since there is no requirement that clerks, assistant clerks and registers of probate be lawyers. Second, the prohibition of DR 2-101(B) is against advertising one's self as a lawyer to any audience, within or without the profession.
The practice under discussion would seem to fall under the prohibition of Canon 9 of the code as well. Disciplinary Rule DR 9-101 prohibits even the appearance of impropriety, which includes in subsection DR 9-101(C) any implication by a lawyer that he or she is able upon irrelevant grounds to influence any tribunal or public official. The clear implication from these advertisements is that the sponsoring attorneys occupy a special relationship to the persons being congratulated and a special place in the court or courts involved. Whether such implication is grounded in fact or not, it is clearly present and accordingly it violates DR 9-101(C).
Attorneys who feel that such laudatory and congratulatory messages to members of the judiciary and court officials are necessary or even worthwhile may accomplish their end and stay within the strictures of the code by sponsoring such advertisements anonymously.

Permission to publish granted by the Board of Delegates, 1975. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.