Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Ethical considerations concerning paid political advertising by attorneys.
Rules 1 and 2 of the Rules of Professional Conduct of the State Bar.1
Request has been made for an advisory opinion by this Committee concerning the following question: Do paid political advertisements which list the names of attorneys, designate them as attorneys, and include the addresses of attorneys, violate rule 2, section (a), subsection (2), of the Rules of Professional Conduct of the State Bar or [former] canon 27 of the Canons of Ethics of the American Bar Association?
Rule 2, section (a), of the Rules of Professional Conduct of the State Bar in part provides:
"Rule 2. Section (a). A member of the State Bar shall not solicit professional employment by advertisement or otherwise.
"Without limiting the generality of the foregoing a member of the State Bar shall not solicit professional employment by
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(2) Using a newspaper, magazine, radio, television, books, circulars, pamphlets, or any medium of communication, whether or not for compensation, to advertise the name of the lawyer or his law firm or the fact that he is a member of the State Bar or the bar of any jurisdiction; nothing herein shall be deemed to prevent the publication in a customary and appropriate manner of articles, books, treatises or other writing."
[Former] canon 27 of the [former] Canons of Ethics of the American Bar Association in part provides:
"Advertising Direct or Indirect. It is unprofessional to solicit professional employment by circulars, advertisements, through touters or by personal communications or interviews not warranted by personal relations. Indirect advertisements for professional employment such as furnishing or inspiring newspaper comments, or procuring his photograph to be published in connection with causes in which the lawyer has been or is engaged or concerning the manner of their conduct, the magnitude of the interest involved, the importance of the lawyer's position, and all other self-laudation, offend the traditions and lower the tone of our profession and are reprehensible;..."
In January 1965 the Committee on Professional Ethics of the American Bar Association rendered informal decision No. 825 (1965) on the question of whether it was proper for a lawyer to permit his name to be included in an advertisement supporting a political candidate for a nonjudicial office and listing lawyers who favored that candidate. The Committee stated: "To hold that lawyers as a group could not endorse a candidate for a political office would be to deprive them, because of their profession, of a right of political expression which is inherent in our system and which is freely exercised by other members of our society. Just as lawyers are better qualified to pass upon the qualifications of those who seek judicial office, so their views upon the merits or demerits of those who seek office in the legislative or executive branches of our government are at least as well and perhaps better reasoned and based than those of average members of our society and are certainly entitled to free expression."
The American Bar Association's committee reached a similar conclusion concerning lawyers organizing and expressing their views on public questions in American Bar Association Committee on Professional Ethics and Grievances, Opinion No. 148 (1935) and said, "The right of citizens to organize to give expression to views which they entertain upon public questions is one of the unalienable rights which Americans enjoy, and lawyers enjoy that right as citizens in common with their fellow men."
The American Bar Association Committee on Professional Ethics and Grievances, informal decision No. 825, supra, contains certain limitations. They are:
1. The advertisement should be signed by the lawyers as individuals and not with their firm names.
2. No addresses or other identifying data should be given.
3. The group as a whole should be described merely as a group which supports the named candidate or proposition without singling out any particular individuals in it, although if the group consists exclusively of lawyers, it may so designate.
With respect to the above-mentioned limitation on addresses and other identifying data, one word of clarification is in order. It is the opinion of this Committee that said limitation should only apply to the postal addresses. This Committee finds no serious objection to separating the name of attorneys on a large listing by towns, counties or larger geographical areas.
It is the opinion of this Committee that paid advertisements relating to political and other issues of broad public interest and concern which list the names of individual attorneys and identify them as such are not in violation of rule 2, section (a), of the Rules of Professional Conduct of the State Bar or [former] canon 27 of the Canons of Ethics of the American Bar Association, provided that the limitations set forth above are observed.
Attached to the request for this advisory opinion were clippings of paid political advertisements published during the 1966 California primary and general elections. Some of these advertisements did not conform with the limitations stated above. To that extent they violated the cited rule of professional conduct and the cited canon. The specific violations are:
1. The postal address of one lawyer, purporting to represent the group, was stated.
2. In several instances particular lawyers in the group were singled out apart from the printed list of lawyers' names.
3. In one advertisement a small group of named lawyers purported to speak for a much larger group of unnamed lawyers. The advertisement stated that a list of the unnamed lawyers was available on request. Thus, those whose names were printed in the advertisement were singled out of the group as a whole.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III.D.)]
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