107 N.J.L.J. 330
April 16, 1981
Lawyer Participation in
Media Call-in and Write-in
Programs Opinion 148 Modified
The New Jersey State Bar Association is currently working with
the New Jersey Public Television on a new series of programs which
through the vehicle of viewer "call-in" programs will be designed
to educate the public on legal subjects. In this connection the Bar
Association has requested that the Committee reconsider its Opinion
148, 92 N.J.L.J. 184 (1969), in which we concluded that lawyer
participation in such programs is improper. The questions which
were presented to this Committee as set forth in Opinion 148,
Question 1. Inquiry is made as to whether it is ethical for an attorney guest panelist on a television program to answer particular legal questions asked by members of the audience during the program.
Question 2. Inquiry is made as to whether it is ethical for such attorney in response to a letter from a member of the audience, to accept a retainer and establish an attorney-client relationship.
Both questions were answered in the negative.
The Association in its legal memorandum, has pointed out that
The United States Supreme Court has held that the public
has an important interest in increasing its availability
to legal services. First amendment considerations
warrant regulation of the legal profession only when
there is a compelling state interest. NAACP v. Button,
371 U.S. 415 (1963), In re Primus, 436 U.S. 412 (1978).
In the context of advertising, permissible conduct
includes addressing the public in any manner that does
not represent the quality of the legal service, nor
materially misleads. Bates v. State Bar of Arizona, 433
U.S. 350 (1977), DR 2-101. Guided by Bates and the
resulting amendment to the disciplinary rules,
involvement by lawyers in the programs described in this
inquiry may be considered a protected form of first
amendment speech as long as the lawyer does not mislead
or blatantly solicit.
Since the publication of our Opinion 148, supra, there has been a dramatic recognition of the responsibility of the legal profession adequately to communicate with the public and of the public's right to be informed on legal subjects. The expression of this new philosophy appears in the Introduction to Public Relations Guide for State and Local Bar Associations (1979 ed.) prepared by the Standing Committee on Association Communications and Division of Communications of the American Bar Association in the following
Public relations is an integral function of the legal
profession, whether we are always aware of it or not. The
profession depends, as few others do, on public under
standing and approval.
This acceptance will become even more vital as public opinion changes, as traditional ways of administering justice are challenged, as minorities and other groups assert their constitutional rights, as the number of lawyers continues to increase, and as the profession itself attempts to resolve new and unprecedented legal and social issues.
The legal profession is not an island unto itself. It is in the mainstream of American life. It must be responsive to the human needs of society. The law is neither rigid nor detached from those whom it serves, and neither can members of the legal profession function apart from society. They must reach out, become more visible as part of the social fabric, and help the citizenry to realize more fully that the law serves the people, not the people the law.
By promoting a healthier, more personal understanding and appreciation of the law, the legal profession can build a greater confidence in the profession, and a greater respect for the individual attorney and judge.
Millions of Americans simply do not know the law, understand the legal process, or comprehend its function in promoting individual rights and social justice.
In the light of the foregoing, we hereby modify our Opinion 148 and answer Question l in the affirmative. Our position with respect to Question 2 remains unchanged.
Incidentally to the New Jersey State Bar Association's request for reconsideration of Opinion 148, it also submitted the following questions:
1. Assuming the lawyer does not know the identity of the caller or all the facts of the case, may a lawyer answer questions relative to particular areas of the law "called-in" by listeners of radio programs, viewers of television programs or readers of publications seeking legal information of a general nature?
2. Would the answer to Question l be any different if the "call-in" programs or newspaper columns contained a disclaimer stating that the lawyer's answers are for information only, and that a person with a particular problem should seek legal advice?
3. Would the answer to Question l be any different if the program was sponsored by, or a lawyer appeared on behalf of, a state or local bar association or its lawyer referral service?
The fact that the lawyer does not know the identity of the caller or the member of the audience or any person who asks the questions is immaterial. However, the fact that the lawyer does not know all the factual background relating to the inquirer's question will likely result in an incomplete or erroneous response which will be a disservice to the inquirer and a discredit to the lawyer and the program of which he is a participant. In our opinion there should be a disclaimer advising the inquirer to the effect that on the basis of the question presented, the general answer appears to be thus and so that for the inquirer's protection it is recommended that he seek competent legal advice. Our position in this regard is the same regardless of how the program is sponsored.
While we now approve lawyer participation in the "call-in" programs, we specifically direct the attention of the bar to restrictions imposed by DR 2-102(C) proscribing the "use of show manship or self-laudation and the provisions of DR 2-104 (A)(2) and (4) relating to the acceptance of employment resulting from a lawyer's participation in such activities and the undertaking to give individual advice.