Ethics Opinion

Opinion No. 77-11

November 1977

Summary: It would be improper for a lawyer, engaged in the practice of another profession or business, to circulate advertisements for that profession or business where such advertising is calculated to lead the general public to believe that legal services are offered or that services would be performed by lawyers.

Facts: A corporation "involved in the business of representation of artists, athletes and entertainers; engaged in professional or amateur athletics; production and distribution of materials dealing with the entertainment and sports fields; and research of problems in the entertainment and sports fields" wishes to know whether it would be permissible to circulate certain brochures to athletic directors of colleges belonging to the NCAA (National Collegiate Athletic Association). The writer states that the corporation's board of directors "feels that the brochure solicits business in those areas in which we are engaged but does not solicit legal business. In addition the corporation itself does not engage in legal business."

Discussion: DR 2-102(E) specifically states that a lawyer "who is engaged both in the practice of law and another profession or business" shall not "identify himself as a lawyer in any publication in connection with his other profession or business." Similarly DR 2-101(B) "A lawyer shall not publicize himself ... as a lawyer through newspaper or magazine advertisements ... or other means of commercial publicity ..." and DR 2-105(A) "A lawyer shall not hold himself out publicly as a specialist ..." which also speak to advertising.

The clear purpose of the foregoing disciplinary rules is the protection of the general public. It is easy to see that if lawyers were to advertise themselves as such in connection with other businesses and professions, the public would rely on their legal expertise in seeking services. The problem is compounded when corporations circulate publicity concerning lawyers on their staffs because of the limited liability of corporations.

In the instant case, the brochures are certainly vague and ambiguous in many respects. The exact nature of the services to be rendered by the corporation is nowhere spelled out. Nor is it specifically stated that the three individuals pictured on the brochure are members of the bar. However, all three are identified as law school graduates and two are credited with teaching courses on legal subjects, it would be difficult to escape the conclusion that the three are lawyers. To construe DR 2-101(B) as forbidding only the actual words "lawyer" or "member of the Bar" would render the rule ineffective. The brochure in question states "... we have a panel of experts from many fields, lawyers, law professors ... (and others) make up this panel ... . These are people who are busy in many pursuits but who are willing to engage in specific tasks for (the corporation) and its clients." To construe the foregoing as anything but solicitation of legal business would require an extremely tortured reading. The brochure further states that potential users of the service are "subject to common legal and economic regulations" and that the corporation undertakes representation with regards to "contract negotiations" and "estate planning" in addition to other areas. In spite of the disclaimers made by the inquirer we think that the clear intent of the brochure is to lead the public to believe that legal services are offered by the corporation, or in the alternative that the corporation acts as a referral service to lawyer specialists. For these reasons, the brochure is improper under present standards.

Permission to publish granted by the Board of Delegates, 1977. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.