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                                         98 N.J.L.J. 534
                                        June 12, 1975

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court


OPINION 309

Advisor to Medical
Malpractice Newsletter and Seminars

    The inquirer asks whether it is proper for him to accept a retainer to serve as an attorney for a group of physicians which intends to publish a "Malpractice Newsletter," which also plans to sponsor periodic malpractice seminars for the subscribers who will be primarily doctors and hospital administrators. The following specific questions are asked:
    1.    May I serve as attorney to the group, particularly with reference to the technical legal aspects of the articles in the newsletter?

    2.    May my name appear in the newsletter indicating that I am the legal advisor?

    3.    May I periodically contribute a column concerning general principles of law; current legal trends; and discussing court decisions?

    4.    May I participate in the seminars sponsored by the group?

    The inquirer quite properly calls attention to the language of the appropriate Ethical Consideration, EC 2-2, of the Code of Professional Responsibility which reads:
            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.

    The balance is, of course, between the obligation of lawyers to educate the public generally on the one hand, and a duty on the part of the lawyer not to "advertise." In maintaining the nice balance between these responsibilities, it is not possible to establish fixed lines, and the test, we think, must be whether persons of ordinary sensibility would regard the conduct of the lawyer as dignified and in keeping with regular and accepted standards of professional conduct, or whether the conduct, in its setting, is essentially self-laudatory.
    Because the balance between the proper conduct of an educational program for laymen and the proscription of advertising is so delicate, it is difficult to articulate any really helpful guidelines. As to the four particular questions submitted with this inquiry, we are satisfied that, in the abstract, the proposed conduct is permissible. At the same time, it is impossible for us to say that, in the performance of these activities the inquirer may not offend both the letter and spirit of DR 2-101 which forbids "professionally self-laudatory statements calculated to attract lay clients."

    For an illustration of the painful delicacy of these matters, contrast Opinions 122, 90 N.J.L.J. 849 (1967), and 134, 91 N.J.L.J. 669 (1968), of this Committee. In Opinion 122 we held that Canons of Professional Ethics, Canon 40 did not preclude an attorney from writing a by-line column for a monthly newspaper, the Labor Herald, covering discussions of the National Labor Relations Act and decisions of the National Labor Relations Board. But in Opinion 134 we distinguished situation in which an attorney proposed to circulate among union members a pamphlet concerning questions and
answers relative to "general information concerning Workmen's Compensation Laws from the time of the injury through final hearing of the workmen's compensation case." This last proposal was held to be calculated to "stimulate interest of the reader in seeking the advice of the attorney-author."
    Obviously the publication of all materials written by an identified attorney for dissemination within the lay community has a tendency to suggest, if not proclaim, not only the existence but also the professional expertise of the author. As such, the conduct of a transgressor may differ only slightly from that of one who has not violated the rule. Such a delicate balance between propriety and impropriety is due to the subjective nature of the test utilized to judge such conduct and may understandably cause charges of "hypocrisy" to be lodged against a body which functions as the arbiter of such conduct.
    Conscious of these considerations, we can do no more than restate the rule; lawyers have both the right and the duty to contribute to the general store of public knowledge and to educate
persons and groups, but in so doing a lawyer must conduct himself with dignity, and must not act in a fashion which persons of ordinary sensibility could fairly regard as essentially self-laudatory.

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