Rutgers School of Law, OAL case ACPE060

87 N.J.L.J. 769
December 3, 1964

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the New Jersey Supreme Court

OPINION 60

Press Releases
Organization Letterheads

The inquiry presented to this Committee by a member of the bar consists of three questions. We shall treat them separately.

1
    May an attorney call a press conference with regard to litigation on any matter in which he is involved? May he further so state in a statement to the news media?
    Canons of Professional Ethics, Canon 20 prohibits newspaper publications by a lawyer concerning pending or anticipated litigation. The question before us is void of facts and is general in character.
    In A.B.A. Comm. on Professional Ethics and Grievances, Opinion 140 (1935), the Committee stated: "Indirect advertisement for business by furnishing or inspiring newspaper comments concerning courses in which the lawyer has been or is engaged...defy the traditions and lower the tone of our high calling and are intolerable. Canon 27."
    In A.B.A. Comm. on Professional Ethics and Grievances, Opinion 199 (1940), the Committee stated:
        The experienced trial lawyer knows that an adverse public opinion is a tremendous disadvantage to the defense of his client. Although grand jurors conduct their deliberations in secret, they are selected from the body of the public. They are likely to know what the general public knows and to reflect the public attitude. Trials are open to the public, and aroused public opinion respecting the merits of a legal controversy creates a court room atmosphere which, without any vocal expression in the presence of the petit jury, makes itself felt and has its effect upon the action of the petit jury. Our fundamental concepts of justice and our American sense of fair play require that the petit jury shall be composed of persons with fair and impartial minds and without preconceived views as to the merits of the controversy, and that is shall determine the issues presented to it solely upon the evidence adduced at the trial and according to the law given in the instructions of the trial judge.

        While we may doubt that the effect of public opinion would sway or bias the judgment of the trial judge in an equity proceeding, the defendant should not be called upon to run that risk and the trial court should not have his work made more difficult by any dissemination of statements to the public that would be calculated to create a public demand for a particular judgement in a prospective or pending case.

    It is the opinion of this Committee, therefore, that the question, as stated, must be answered in the negative.
2 and 3
    May an attorney be listed on the letterhead of an eleemosynary institution as counsel or attorney? If so, may his office address and/or telephone number also be listed?
    May an attorney be listed on the letterhead of a business corporation or organization as counsel or attorney? If so, may his separate office address and/or telephone number also be listed?
    This involves an interpretation of Canons of Professional Ethics, Canon 27 (Advertising, Direct or Indirect) and Canon 35 (Intermediaries). The problem is discussed in Drinker, Legal Ethics 218-9 (1953).

        When a lawyer has the opportunity to perform a service to the community which will place him in the public eye, he need not hesitate to seek or accept it because if successful he will appear frequently in the newspaper, and will enlarge his circle of friends and acquaintances and thus attract new clients, some possibly who have theretofore employed another lawyer. Where publicity is the normal by-product of able and effective service, whether of a professional or non-professional character, this is a kind of "advertisement" which is entirely right and proper. Clients naturally gravitate to a lawyer who has successfully represented their friends or who has obtained the confidence of the community by effective public service. What is wrong is for the lawyer to augment by artificial stimulus the publicity normally resulting from what he does, seeing to it that his successes are broadcast and magnified. While in hypothetical cases it may often seem difficult to draw the line between what is right and what is not, actually, a lawyer soundly brought up in the law, who wholeheartedly accepts his professional status, will rarely have any difficulty in realizing the difference between the normal by-product of efficient service and the unwholesome results of self-aggrandizement.

    In Ass'n. of the Bar, City of N.Y., Committee on Professional Ethics, Opinion 766 (1951), it was held that it was not improper for a lawyer to permit his name to be listed on letterheads of an unincorporated group of psychologists and a nonprofit religious or educational corporation to be founded, both of which he represented, provided no solicitation of legal business was involved.
    The same committee, in Opinion 461 (1938) had before it the question of an attorney's name being used on the letterhead of an amateur baseball league. The attorney's services were gratis, the lawyer being interested in fostering youth in amateur sports. The lawyer's name appeared on the letterhead with the designation "Attorney at Law." The Committee objected to the words "Attorney at Law," stating that they might be interpreted as soliciting legal business. It held that the lawyer's name might appear on the letterhead with the designation "Counsel."
    A.B.A. Comm. on Professional Ethics and Grievances, Opinion 285 (1951) states:
        The canon does not require a lawyer to condemn or prevent every allusion to him by satisfied clients where the purpose of the statement is not to advertise the lawyer but is obviously and primarily in the interest of the party making it, or of those to whom it is directed, even though some incidental advantage to the lawyer may possibly result. ...

        Each case must turn on its own facts. In cases where there is any doubt, the question should be resolved against the propriety of such specification.

    It is the opinion of this Committee that the name of "Counsel" may be listed on the letterhead of an eleemosynary institution or of a business corporation or organization, providing the letterhead contains the names of other officers. The inclusion, however, of the attorney's address and/or telephone number would clearly be in violation of Canon 27. This does not preclude the use of letterhead stationery containing the names and addresses of all officers for intra-organization communications where such stationery is not intended for the general public.
    The test is whether the information as to who is counsel for the organization is clearly and primarily in its interest and has not the effect of unduly advertising the attorney. Drinker, Legal Ethics 262 (1953).

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