Opinion 462
Question Presented
Under the Texas Code of Professional Responsibility, may an attorney provide subscriptions to magazines to be placed in waiting rooms of businesses where each magazine would be enclosed in a plastic magazine cover on which there would be a printed statement indicating that the magazine was provided by the attorney and giving the attorney's address and telephone number?
Provision of magazines for a waiting room would involve giving something of value to the business concerned -- if the lawyer did not provide the magazines, the waiting rooms would not be as comfortable for customers or the business itself would have to bear the expense of providing the magazines. Unless the magazine cover affirmatively indicated that it was an advertisement or there was a printed disclaimer of any recommendation of the lawyer by the business concerned, the arrangement would likely be viewed by some of the business's customers as a recommendation of the lawyer by the business. Thus, in the absence of some clarifying statement, the arrangement would involve a lawyer's giving something of value to the business in exchange for an implied recommendation of the lawyer. Such transfer of value in exchange for implied recommendation would be in violation of Disciplinary Rule ("DR") 2-103(C), which provides as follows: "A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that a lawyer may advertise in the public media within the limits of DR 2-101, so long as the advertising communication does not take place in person or by telephone."
This rule would not be violated by the proposed magazine arrangement if steps were taken to make clear that provision of the magazines was an advertisement or that no recommendation of the lawyer by the business should be inferred by customers. A clarifying statement along these lines could easily be included with the statement that the magazines were provided by the lawyer.
The situation that is the subject of this opinion is to be distinguished from the situation discussed in Opinion No. 456 (Texas Bar Journal, September 1988), which dealt with a placard in an auto body repair shop alerting the public to the availability of legal assistance. The placard situation did not involve a lawyer's providing anything of value to the repair shop and hence there was no violation of DR 2-103(C).
Under the Texas Code of Professional Responsibility, a lawyer's provision of magazines for a business waiting room with statements on plastic covers identifying the lawyer providing the magazines would violate DR 2-103(C) unless there was on the magazine cover either (1) a clear statement to the effect that the magazine arrangement was an advertisement by the lawyer (in which event compliance with the provisions of the Disciplinary Rules pertaining to advertising would be necessary); or, (2) an effective disclaimer so that persons reading the magazine cover could not reasonably understand the business to be recommending the lawyer who was identified as providing the magazines.
Bluebook Citation
Tex. Comm. On Professional Ethics, Op. 462 (1989)