Opinion 249

18 Baylor L. Rev. 325 (1966)

ADVERTISING
When a lawyer is engaged in an independent activity which will, by its very nature, probably result in his counseling another person regarding matters of law, and when the activity is such that such other person is, directly or indirectly, employing or paying him for such counseling, the lawyer cannot, in his advertisements for the independent activity, refer to the fact that he is a lawyer nor to his legal training even though he is not generally holding himself out as a practicing lawyer. This opinion thus modifies Opinion No. 194.

Canon 24. ABA Canon 27.

There often arises the situation of one who, while purporting not to practice law, is engaged in an activity very close to the practice of law and who wants to advertise his legal background so as to indicate his particular fitness for the independent activity in which he is engaged.

Lawyers are, of course, generally forbidden to seek clients by advertisements on the principle that the legal business of clients should not be solicited commercially. There is little problem, consequently, when one is practicing law or is holding himself out to the public as being engaged in law practice because it has been clearly set out that he cannot advertise another activity so as to solicit, directly or indirectly, legal business for his law practice, nor can he engage in such other activity, as will serve to feed his law business.

On the other hand, a lawyer can engage in any proper business he desires as an independent business; and, if he runs a grocery store, he can run in the newspaper all the grocery store advertisements he wishes. Because of this, it follows that one engaged in an independent business can advertise in it so long as it does not indirectly advertise his, or feed his, law practice. From this, then, one could easily conclude that, where the attorney is not practicing law, he can, in his advertisements of his independent business, refer to his status as a licensed attorney or law school graduate, since this could not possibly feed a non- existent law practice. See Texas Opinion No. 194.

There is, however, the question of what constitutes the practice of law. It is certainly not limited to going to court; the office lawyer who merely counsels is practicing law. The committee feels that one is engaged in the practice of law when he is acting in some fiduciary capacity to the person counseling with him and when he gives to that person advice requiring some expert knowledge of law, and particularly when he is holding himself out to that person as having some expert knowledge of law.

It would not seem possible, for example, for an insurance salesman to advertise himself as a lawyer and to counsel with prospects about the use of insurance in planning their estate and, at the same time, avoid practicing law. By the same token, it would seem impossible that a licensed lawyer can advertise that he is a lawyer and thus hold himself out as having expert knowledge of law and, then, act in a fiduciary capacity with a "client" as "marriage counselor" and, at the same time, avoid giving some advice to that person which amounts to the practice of law. If this conclusion is not correct, it is difficult to understand why it would be of any advantage to advertise membership in the bar.

It can be seen, therefore, that there are some fields which, if engaged in as an independent activity by a licensed lawyer, are so interrelated with the legal profession that it would be impossible for a licensed lawyer to avoid giving some advice which would amount to practicing law. The American Bar Association has held that the fields of investment counseling and marriage counseling are too nearly related to the practice of law to justify a lawyer's advertising in connection with them (ABA App. A 1957␣42, 44 and 41A) and has also reached the same conclusion relative to an income, inheritance, and government tax service. (ABA Opinion 260.)

Our committee would draw the line in this way: When a lawyer is engaged in an independent activity which will, by its very nature, probably result in his counseling another person regarding matters of law, and when the activity is such that such other person is, directly or indirectly, employing or paying him for such counseling, the lawyer cannot, in his advertisements for the independent activity, refer to the fact that he is a lawyer nor to his legal training even though he is not generally holding himself out as a practicing lawyer. (This opinion thus modifies Opinion No. 194.)
The conclusion of the committee is that the advertisement which the clinical psychologist desires to use in the classified section of the telephone book violates Texas Canon 24 and ABA Canon 27. (9-0.)