Opinion 394

Statement of Facts Discussion Conclusion

PARTICIPATION BY LAWYERS
The former Texas Canon of Ethics which governed lawyer participation in legal educational programs was Canon 37, which provided: A member may with propriety write articles for publication in which he gives information upon the law; but he shall not accept employment from such publications to advise inquirers in respect to their individual rights. See, Texas Opinion 12 (Spring 1948), Texas Opinion 90 (1953) and Texas Opinion 239 (July 1961) for specific opinions issued in accordance with this former Canon.

On December 20, 1971, Article XIII--Canon of Ethics was amended by Section 8, Code of Professional Responsibility, which was promulgated by order of the Supreme Court. The provision in the new Code of Professional Responsibility which deals directly with participation by lawyers and legal educational seminars and programs is Ethical Consideration 2-2, which reads as follows: The legal profession should assist laymen to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include preparation of institutional advertisements and professional articles for lay publications and participation in seminars, lectures, and civic programs. But a lawyer who participates in such activities should shun personal publicity.

Although lawyers are encouraged under this Ethical Consideration to participate in legal educational programs, they are subject to the limitations and guidelines of Ethical Consideration 2-5, which provides: A lawyer who writes or speaks for the purpose of educating members of the public to recognize their legal problems should carefully refrain from giving or appearing to give a general solution applicable to all apparently similar individual problems, since slight changes in fact situations may require a material variance in the applicable advice; otherwise, the public may be misled and misadvised. Talks and writings by lawyers for laymen should caution them not to attempt to solve individual problems upon the basis of the information contained therein. A further limitation is found in Disciplinary Rule 2-104 which allows a lawyer to "speak publicly or write for publication on legal topics so long as he does not emphasize his own professional experience or reputation and does not undertake to give individual advice."

A number of Opinions have been issued by the American Bar Association on the subject of lawyers participating in radio and television programs. In Formal Opinion 298, the ethical aspects of appearances on these types of programs were considered: In the case of continuing education or public information programs, such as the panel or interview type, sponsored or supported or assisted by bar associations, or affiliated groups, or by those non-commercial programs of this type produced by the television and broadcasting companies designed and used as public information programs, lawyers and judges may properly appear and be identified as such, either generally or individually, provided, always, that such programs conform to the proper standards of the Bench and Bar. See also, ABA Informal Opinion No. 1094 (October 9, 1969).

In 1965, the American Bar Association issued ABA Informal Opinion No. 840, which approved the following general guidelines which are applicable to lawyer participation in such programs: 1. It is perfectly proper for a lawyer to participate in a legitimate seminar on a legal subject as long as the seminar is run in a proper manner. See Canon 40; Opinions 92, 121, 141, 162 and 298; Informal Decisions 226 and 528. 2. The seminar must have as its purpose the imparting of information to the participants, that is, its purpose must be educational in nature. It is improper for a lawyer to participate in a seminar the main purpose of which is to publicize, or make money for, its sponsors, the lawyer, or others. 3. The seminar must be sponsored by a bar association, school, or other responsible public or private organization. It is improper for a lawyer to participate in a seminar sponsored by an organization lacking in complete responsibility. 4. Seminar participants may properly consist of lawyers or laymen or both. Those attending the seminar may properly consist of lawyers or laymen or both. 5. A lawyer may properly be paid for his participation in the seminar. See Opinions 92 and 141. 6. The seminar announcement and other written materials may list the name of a lawyer participant with a short factual and dignified statement of his qualifications. See Canon 27. 7. It is absolutely improper for an attorney to answer questions of laymen concerning their specific individual problems. See Canons 34, 35, 40 and 47; Formal Opinions 1, 8, 31, 41, 56, 92, 98, 122, 162, and 270; Informal Decisions 228, 317, 319, 528 and 659. These guidelines for the presentation of continuing legal education programs were similarly set forth in ABA Informal Opinion No. 1021 (1968): Continuing legal education programs today are presented sometimes by non-profit corporations, sometimes by educational institutions, sometimes by bar associations, sometimes by corporations for profit, and sometimes by lawyers themselves or their law firms. We think in determining what is appropriate for a lawyer to do in participating in these programs and what is appropriate for a lawyer to permit to be said about him will not turn on a question as to whether or not a profit is to be made from the program, but will turn on the question as to whether or not the overall thrust of the program is designed as a program to advertise a particular lawyer or a group of lawyers. If it is, then the same kind of information about his law firm, about his past accomplishments, etc. would be improper, whereas if it is not, then it is proper to tell persons who may desire to attend these programs any information that is relevant so far as their making up their mind as to whether the program would be worthwhile. This could include the name of his law firm, his experience, etc. of course, the information must be presented in a dignified manner.

As shown by the above Ethical Considerations, Disciplinary Rules, and Texas Opinions, a lawyer is encouraged to participate in educational and public relations programs in order to assist the layman. The lawyer should follow the guidelines set forth herein and keep in mind that the program should be for the benefit of the public rather than to obtain publicity or employment for lawyers.

ADVERTISING AND PROMOTION

The success of continuing legal educational programs and seminars is dependent in part on the number of persons who attend such programs or seminars. It is often necessary to show the qualifications of the speakers in order to promote the program. The American Bar Association issued ABA Informal Opinion No. 840, which generally prescribes the extent and manner in which these programs may be promoted: The seminar announcement and other written materials may list the name of a lawyer participant with a short factual and dignified statement of his qualifications. See Canon 27. ABA Informal Opinion No. 1135 (1970) reaffirmed this general standard and further held that: . . . it would be proper for a lawyer to furnish and for a bar association or continuing legal education association sponsoring a seminar to send out a news release and picture of the lawyer participating therein. We believe it is a much better practice for the bar association or continuing legal education organization to send out this release than for the lawyer himself to do so. However, if the lawyer sends out this release he should conform to the provisions of EC 2-2 and Disciplinary Rule DR 2-101(A).

The provisions of EC 2-2 have been previously set forth in this Opinion. Disciplinary Rule 2-101(A) of the American Bar Association, adopted verbatim by the Texas Code of Professional Responsibility, reads as follows: 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; as used herein, "public communication" includes, but is not limited to communication by means of television, radio, motion picture, newspaper, magazine or book. A referendum was recently proposed by the State Bar of Texas to amend Disciplinary Rule 2-101 to provide specific limitations upon publicity of a lawyer. Although this referendum failed, the operation of Disciplinary Rule 2-101 and 2-102, Article XII, Section 8a of the Rules Governing the State Bar of Texas, is suspended to the extent that it conflicts with the decision of the United States Supreme Court in Bates and O'Steen v. State Bar of Arizona, 433 U.S. 350 (1977), by Order of the Supreme Court of Texas effective December 13, 1978.

The opinions referred to above emphasize that promotional and advertising materials relating to seminars and educational programs should be dignified and designed to publicize the seminar or program rather than the lawyer participants. Assuming that this general standard is met, it would be proper for sponsoring organizations to issue a press release on the seminar or program to various media and to include in the release the following information as to any of the lawyer participants: a. The lawyer's picture; b. The topic on which he will speak; c. His name, the name of his law firm, and the place where he practices; d. His earned degrees and other honors obtained by him; e. Such general background information as may indicate that he is qualified to speak on the particular topic assigned to him; f. That the lawyer is experienced or qualified in the particular field of law on which he is to speak.

Where a lawyer participant receives a direct inquiry from any news media relating to his program participation, he should, where feasible, refer the inquiry to the sponsoring organization. There would, however, appear to be no basic objection to his furnishing the media in response to such an inquiry with his picture and with any of the above listed information which is purely factual. However, he should not include in the material any self-laudatory statements to the effect that he is in fact either experienced or qualified in the particular field of law in which he is to speak, except as authorized by Disciplinary Rule 2-105(A)(4) and the Bates decision, DR 2-101 and DR 2-105(A). Lawyer participants in sponsored educational programs should not prepare personal publicity to be released directly by themselves to news media, absent some direct request from the media, as apparently permitted by ABA Informal Opinion 1135 (1970). The lawyer has an affirmative obligation to endeavor to see that all publicity concerning the seminar or program conforms to proper standards as outlined herein.