Rutgers School of Law, OAL case ACPE283

97 N.J.L.J. 362
May 16, 1974

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 283

Announcement to Other Lawyers
Availability as Specialized Consultant

    An attorney has made an inquiry concerning the content of an announcement to be sent to lawyers only. The attorney states:
    1.    On December 20, 1973 he was sworn in as a member of the New Jersey Bar.

    2.    After becoming a member of the New York Bar in 1955 he undertook the following:

        a)    special study in the land use control field earning a Ph.D. degree of doctoral dissertation dealing with zoning

        b)    completion of other related specialized study

        c)    writing and lecturing on legal facets of environmental, housing, land use planning and control renewal, and zoning assignments

        d)    acquisition of a New Jersey professional planners license, full membership in the American Institute of Planners

        e)    election as affiliate member of the Institute of Traffic Engineers.

    He would like to send out the following specialized announcement to other lawyers:

SUBSTANCE OF PROPOSED ANNOUNCEMENT
        This is to announce the availability of [attorney's name], Ph.D. to act as a consultant or as an associate to render specialized legal services pertaining to environmental, housing, land use control renewal, and zoning matters and cases.      [attorney's address and telephone number]
        Member N.J., N.Y., and KY. Bars
        Member of the American Institute of Planners
        Licensed New Jersey Professional Planner
        Affiliate Member - Institute of Traffic Engineers
    DR 2-105(A)(3) of the New Jersey Code of Professional Responsibility provides:
    (A)    A lawyer shall not hold himself out publicly as a specialist or as limiting his practice, except as permitted under DR 2-102(A)(6) [pertaining to reputable law lists], or as follows:

        (3)    A lawyer available to act as consultant to or as an associate of other lawyers in a particular branch of law or legal service may distribute to other lawyers and publish in legal journals a dignified announcement of such availability, but the announcement shall not contain a representation of special competence or experience. The announcement shall not be distributed to lawyers more frequently than once in a calendar year, but it may be published periodically in legal journals.

    Does the language of the proposed announcement, "contain a representation of special competence or experience," which would violate that provision?
    We think that it does, and it therefore cannot be used.

    When an attorney announces his availability to other lawyers he hopes that his reputation has already been noted by some members of the profession, and that requests for his consultation will be forthcoming. But, the use of language stating that he is available "to render specialized legal service pertaining to environmental housing, land use planning and control renewal, and zoning matters and cases" (emphasis added), can only be calculated as an attempt not to announce his availability but to promote his services to lawyers who are not yet familiar with his background and expertise. It is a prohibited form of adverting. This is the crux of the problem. An announcement permitted by the rules is for the sole purpose of showing availability in a particular branch of the law.
    Wise, Legal Ethics, 179 (2d ed. 1970) says:
        Solicitation of lawyers is as improper as solicitation of laymen unless there is strict compliance with the exception permitted by the canons.

    Wise, also says at page 183:

        Notice of availability to serve other lawyers should be used with careful observance of the manner and form prescribed by the language of the applicable canon, and soliciting an opportunity to serve other local lawyers in any branch of the law or in any legal service is proper in any state which has adopted the amended A.B.A. Canon 46, as amended in 1956, or DR 2-105(A)(3).

    There is no question concerning the fact that planning and zoning are particular branches of the law within the meaning of DR
2-105(A)(3), but, as used in the lawyer's description of availability, "environmental, housing, land use control and renewal," while descriptive of some of the planning and zoning problems, are not in themselves branches of the law, and therefore, should not be used in any letter to lawyers. See Wise, Legal Ethics 177 (2d ed. 1970).
    With respect to the use of earned degrees, it should be pointed out that the Supreme Court of New Jersey, in adopting the A.B.A. Code of Professional Responsibility, made certain changes. It did not adopt DR 2-102(F) which provided as follows:
            Nothing contained herein shall prohibit a lawyer from using or permitting the use, in connection with his name, of an earned degree or title derived therefrom indicating his training in the law.

    As was mentioned in N.J. Advisory Committee on Professional Ethics, Opinion 183, 93 N.J.L.J. 492 (1970), the Supreme Court of New Jersey had not, up to that date, adopted the A.B.A. Code of Professional Responsibility, and the comment in that opinion to the effect that "this committee views the A.B.A. Code as persuasive authority" must be accepted as a true statement as of that time. However, when the Supreme Court of New Jersey, at a later date, did not adopt DR 2-102(F), it is obvious that a policy decision, against the use of degrees, was made by the Court, and said provision of the A.B.A. Code would have no bearing, nor constitute persuasive authority in New Jersey. DR 2-102(F) of the A.B.A. Code, and the ruling of that opinion as to the use of degrees, should no
longer be followed.
    The conclusion is that no notation of degree should appear on his stationery or announcement. See Opinion 257, 96 N.J.L.J. 751
(1973).
    Any announcement to lawyers only should be limited to an announcement of availability to act as a consultant or as an associate for planning and zoning matters, with no mention of memberships or licensing except as to memberships in New Jersey, New York and Kentucky bars, if that is deemed essential to an announcement to the New Jersey Bar members.

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