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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Is it proper to have a telephone listing of a patent law firm in the classified section of the directory under "Patent Attorneys and Agents," when said patent law firm presently has a listing in the directory under "Patent Lawyers"? Is it proper to use the name of a patent agent, hired by the law firm, with the name of the law firm in a classified telephone directory under "Patent Attorneys and Agents"?
Rules 1 and 2 of the Rules of Professional Conduct of the State Bar.1
American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-102.
The opinion of this Committee is sought concerning the propriety of the following proposed telephone listing by a patent law firm in the classified section of a telephone directory under "Patent Attorneys and Agents," said patent law firm presently being listed under "Patent Lawyers."
The questions presented to this Committee are:
A. Is it ethical, as a member of the State Bar of California, to list the individual names, as well as the firm's name, in the "Patent Attorneys and Agents" section of the telephone classified directory, in addition to any listing under the "Patent Lawyers" section thereof?
B. Is it ethical for the firm to hire a patent agent as an employee of the firm and to list the firm name under the patent agent's name in the "Patent Attorneys and Agents" section of the classified telephone directory?
The Committee feels that it should supply the following additional facts as background information: One telephone company employs two separate listings; one is captioned "Patent Attorneys and Agents," and the other "Patent Lawyers," in that order.
We are advised by a telephone company that the "Patent Lawyers" section contains only the names of those patent lawyers who disclose the fact that they are members of the State Bar of California.
Listings under "Patent Attorneys and Agents" are not limited to patent attorneys who do not state whether or not they are members of the State Bar of California, or even whether they are attorneys admitted to the practice of law, but include laypersons as well. Said list, by its title, also includes those laypersons licensed by the Patent Office under the name of patent agents and who are known as patent agents.
No differentiation is discernible as to which of the persons listed are patent attorneys who are lawyers, or patent attorneys who are laypersons, or patent agents who are unlicensed in the field of law.
The question of what constitutes improper advertising and soliciting has been considered on numerous occasions by ethics committees of the American Bar Association and by this Committee. In California, the subject is specifically covered by the Rules of Professional Conduct of the State Bar of California (rule 2, sections (a) and (b)). The Committee feels that a restatement of said rules relating to the use of the classified section of the telephone directory for listing by patent lawyers in this state might be in order.
Rule 2, section (a), states: "A member of the State Bar shall not solicit professional employment by advertisement or otherwise..."
Section (b), paragraph 1, provides as follows:
"Nothing in this rule shall be deemed to prevent ... listings in classified sections of telephone and city directories or usual and customary listings in conventional legal directories or law lists, provided, however, that a listing in a telephone or city directory shall not be in distinctive type, style or form or contain anything other than name, address, telephone number and designation as an attorney at law, and shall not, except as hereinafter authorized, appear under any classification or heading other than a single one used to designate attorneys at law,..."
Section (b), paragraph 3, provides as follows:
"Further, nothing in this rule shall be deemed to prevent a member who devotes substantially his entire time to the practice of patent law or patent, copyright and trademark law from listing his name and address under an additional classification of "Patent Lawyers" segregated as to members of the State Bar, but such listing shall not be in distinctive type, style or form, or contain anything other than his name, address and telephone number." (Emphasis added.)
It is clear that the main thrust of the proposed listing arrangement in category (a) is an attempt by the patent law firm to gain undue publicity and a multiple listing for private advantage instead of merely permitting the name of the individual or firm to appear along with fellow patent lawyers of the State Bar of California under the permitted classification of "Patent Lawyers" for public information purposes. It is also clear that said listing would be in violation of rule 2, section (b), subparagraph (3), of the Rules of Professional Conduct of the State Bar.
The Committee concludes that the language of rule 2, section (b), subparagraph (3), is too clear to require interpretation or to permit dispute as to its application, and it is of the opinion that the proposed listing of the names of patent lawyers and patent law firms, in any telephone classified directory listing other than under "Patent Lawyers," is impermissible and improper.
The situation in category (B) presents a more serious problem. We are advised that a listing in the section "Patent Attorneys and Agents" would show the name of the patent agent (employee) first and, directly thereunder, the name of the law firm, devoid of any explanatory description of the relationship of the parties; i.e.,
"PATENT ATTORNEYS AND AGENTS"
John Doe
Roe, Roe and Smith
The purpose of this listing is to persuade the telephone company to accept the patent law firm name for listing under the section "Patent Attorneys and Agents" by including the name of its employee, the patent agent, which is contrary to the rules of the telephone company.
It is clear that, in addition to the impropriety of the conduct proposed which the Committee has already condemned in this opinion, said proposed advertising is but an attempt to mislead the public, and to do indirectly that which said patent law firm could not do directly. In view of this, the Committee sets forth the following rules which are applicable:
Rule 1 of the Rules of Professional Conduct of the State Bar states:
"These rules of professional conduct adopted by the Board of Governors of The State Bar of California, pursuant to the provisions of the State Bar Act, shall become effective sixty days after approval by the Supreme Court of the State of California. When so approved, these rules shall be binding upon all members of the State Bar, and the willful breach of any of these rules shall be punishable by suspension from the practice of law for a period not to exceed three years. The specification in these rules of certain conduct as unprofessional is not to be interpreted as an approval of conduct not specifically mentioned. In that connection the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar. Nothing in these rules is intended to limit or supersede any provision of law relating to the duties and obligations of attorneys or the consequences of a violation thereof. These rules may be cited and referred to as 'Rules of Professional Conduct of the State Bar of California.'"
The American Bar Association Code of Professional Responsibility, effective January 1, 1970, contains Disciplinary Rules 2-102(B) and 2-102(C), which are stated herein:
Disciplinary Rule 2-102(B)states, in part:
"A lawyer in private practice shall not practice under ... a firm name containing names other than one or more of the lawyers in the firm, . . ."
Disciplinary Rule 2-102(C) states, in part:
"A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners."
Rule 3 of the Rules of Professional Conduct of the State Bar provides, in part:
"A member of the State Bar shall not employ another to solicit or obtain or remunerate another for soliciting or obtaining, professional employment for him; nor, except with a person licensed to practice law, shall he directly or indirectly share compensation arising out of or incidental to professional employment; nor shall he directly or indirectly aid or abet any person not so licensed, or any association or corporation, to practice law or to receive compensation therefrom. A member of the State Bar shall not knowingly accept professional employment offered to him as a result of or as an incident to activities of any person not so licensed or of any association or corporation that for compensation controls, directs or influences such employment..."
In the fact situation presented here, it is clear that the listing is designed to mislead the public. The use of such an arrangement suggests a holding out by the law firm that the employee is a member of the law firm and that the said employee is licensed to practice law in California. It is clear that the public relies solely on the listing and is in no position to determine if said employee is licensed to practice law.
The Committee concludes that the proposed use of the firm name, with the name of the employee, no matter what the arrangement, is a deception not countenanced by the Rules of Professional Conduct of the State Bar, nor by the Code of Professional Responsibility of the American Bar Association. It is obvious that it is not only improper to permit the use of the firm name in the manner suggested, but such holding out, express or implied, not only makes it possible for the unlicensed patent agent (employee) to practice law, but could also insure that the State Bar member law firm will obtain professional employment as a result of the activity of the unlicensed employee. (See ABA Committee on Prof. Ethics, opns. Nos. 106 (1934), 257 (1944) and 310 (1963).)
It is the opinion of this Committee, based upon the facts outlined herein, that the listing proposed in category (B) is improper.
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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