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 use a union "bug" on a lawyer's letterhead or union identification symbols under the identification line on a lawyer's correspondence?
Rules 2, 3, and 20 of the Rules of Professional Conduct of the State Bar.1
American Bar Association Code of Professional Responsibility, Disciplinary Rules 2-101 and 2-103.
This Committee has been requested to advise the Board of Governors of the State Bar upon the resolution adopted at their January 1971 meeting, as follows:
"RESOLVED that the Board hereby refers to the Committee on Professional Ethics for its opinion on the matter of the ethical propriety of a member of the State Bar (1) using professional letterheads bearing the union "bug", and (2) permitting his employees, whether or not pursuant to a union contract with a local representing his or his firm's clerical employees, to place on letters and other similar documents, below the initials of the signer or secretary, initials and symbols which represent the union local having a contract with the lawyer or law firm or representing his employees but not being a firm client."
We assume that the union "bug" referred to in the first part of this question is that which the company printing the stationery for the attorney places upon the letterhead, business card, etc., in tiny print, with language containing the name of the printing union, its locality and the union local number. We further assume, for purposes of the second part of this question, that the practice to which this question refers is that of the attorney's secretary (being a union member) placing under the initials of the writer and/or the secretary, at the bottom of correspondence, and/or other documents, the initials of the name of his union, its local number, and a reference to the national union with which the local is affiliated.
With regard to the "bug" we are informed that it is the practice of the printing industry to place this mark upon attorney's stationery only when the attorneys so request it. The apparent purpose of the "bug" is to demonstrate to the person using or reading the letter, card or other document that the material was printed by a union shop. Therefore the only purpose that can be served by attorneys requesting the "bug" be placed on their materials is to allow the attorney to advertise to his clients and staff that he employs a union shop for the purpose of printing his materials. We are informed that its use is only requested by law firms who represent labor unions or who derive a portion of their business from labor unions.
The second part of this question arises from the practice of placing the initials of the name of the union, its local number, and its national affiliation in symbolic form on letters and documents typed by secretaries who are members of office employee unions. We are informed that this is a custom and practice in some areas and is not required either by the union contract or by the attorney who employs the secretaries who are members of the union. Once again, it appears that the purpose is to allow the attorney to demonstrate to the public that he employs unionized clerical help; it also constitutes an advertisement by the union to the same effect. We therefore assume, for purposes of this question, that the attorney-employer has the option of permitting this practice or not.
The Rules of Professional Conduct of the State Bar do not expressly dictate the manner or style in which an attorney may design his stationery and related materials. However, the following general principles contained in the Rules of Professional Conduct would appear to be appropriate to a consideration of the questions raised by this resolution:
1. Rule 2(a) provides that "A member of the State Bar shall not solicit professional employment by advertisement or otherwise."
2. Rule 2(a)(3) provides that an attorney "shall not solicit professional employment by using signs of any character, except a modest and dignified sign on or near the door of the law office of any attorney or such other place reasonably near thereto as may be sanctioned by local custom, disclosing his name, or the name of his law firm and the word 'attorney', 'attorney at law', 'counselor at law', 'lawyer', or 'law office', or if a patent lawyer, 'patent lawyer'."
3. Rule 3 provides that "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;. . . A member of the State Bar shall not knowingly accept professional employment offered him as a result of or as an incident to the activities of any person not so licensed or of any association or corporation that for compensation controls, directs or influences such employment,..."
4. Rule 20 permits the rendition of group legal services but prohibits all "publicizing and soliciting activities concerning the arrangement except by means of simple, dignified announcements setting forth the purposes and activities of the group or the nature and extent of the legal services, or both, without any identification of the member or members of the State Bar rendering or to render such services." For purposes of that section, a "group" includes a labor union.
In addition, rule 1 of the Rules of Professional Conduct states that the Code of Professional Responsibility of the American Bar Association "should be noted by the members of the State Bar." In that connection, it seems appropriate to set forth the provisions of that code which seem to apply to this situation:
1. Ethical Consideration 2-8 provides that "Selection of a lawyer by a layman often is the result of the advice and recommendation of third parties--relatives, friends, acquaintances, business associates, or other lawyers. A layman is best served if the recommendation is disinterested and informed. In order that the recommendation be disinterested, a lawyer should not seek to influence another to recommend his employment. A lawyer should not compensate another person for recommending him, for influencing a prospective client to employ him, or to encourage future recommendations."
2. Ethical Consideration 2-9 states that "The traditional ban against advertising by lawyers, which is subject to certain limited exceptions, is rooted in the public interest. Competitive advertising would encourage extravagant, artful, self-laudatory brashness in seeking business and thus could mislead the layman. Furthermore, it would inevitably produce unrealistic expectations in particular cases and bring about distrust of the law and lawyers. Thus, public confidence in our legal system would be impaired by such advertisements of professional services... History has demonstrated that public confidence in the legal system is best preserved by strict, self-imposed controls over, rather than by unlimited, advertising."
3. Ethical Consideration 2-10 provides that "Methods of advertising that are subject to the objections stated above (in ABA Code of Prof. Responsibility, EC 2-9) should be and are prohibited. However, the Disciplinary Rules recognize the value of giving assistance in the selection process through forms of advertising that furnish identification of a lawyer while avoiding such objections. For example, a lawyer may be identified in the classified section of the telephone directory, in the office building directory, and on his letterhead and professional card. But at all times the permitted notices should be dignified and accurate." (Emphasis added.)
4. Disciplinary Rule 2-101(A) states "A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients;..."
5. Disciplinary Rule 2-102(A) states "A lawyer or law firm shall not use professional cards, ... letterheads, ... or similar professional notices or devices, except that the following may be used if they are in dignified form: ... (4) A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under Disciplinary Rule 2-105 [relating to specialties]."
6. Disciplinary Rule 2-103(A) states that "A lawyer shall not recommend employment, as a private practitioner, of himself, his partner, or associate to a nonlawyer who has not sought his advice regarding employment of a lawyer."
7. Canon 9 of the American Bar Association Code of Professional Responsibility states "A lawyer should avoid even the appearance of professional impropriety."
8. Ethical Consideration 9-6 provides "Every lawyer owes a solemn duty to uphold the integrity and honor of his profession; ... and to strive to avoid not only professional impropriety but also the appearance of impropriety."
Clearly, the above amply demonstrates that the attorney should, even in the selection of his stationery and related materials, strive to present himself to his clientele and the public generally, on behalf of himself and his fellow lawyers, in a dignified, professional manner, not designed improperly to advertise or solicit in any way on behalf of himself or others. Applying this principle to the questions presented by the resolution of the Board of Governors, this Committee concludes as follows:
1. The use of the union printing "bug" above described is objectionable. It is not within the list of permissible items for stationery and related materials and constitutes a symbol or sign or a character that is inappropriate. It is also a form of advertising, as it is being used, and of indirect solicitation.
2. The above described practice by the attorneys' clerical staff is also objectionable, based on the above standards. The attorney employing said staff is permitting, and perhaps even directing, the staff to publicize their union status to clients. The only motive attributable to this is the motive to capitalize in some professional way. The inference that secretaries who are not union members are not of a similar status is entirely unacceptable. This practice also permits the union to utilize the attorney's stationery for advertising purposes, which is also entirely unacceptable. It further detracts from the professionalism and dignity of the attorney's presentation of himself as a member of the State Bar to the public.
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.
USE OF UNION "BUG" ON LAWYERS' LETTERHEAD OR UNION IDENTIFICATION SYMBOLS UNDER IDENTIFICATION LINE ON LAWYERS' CORRESPONDENCE
The Board of Governors of the State Bar, at its May 1971 meeting, following review of Opinion No. 1971-24, by resolution re-referred to this Committee the subject matter of the opinion and specifically requested our opinion concerning the propriety of the use of the union "bug" on the lawyers' letterhead or of union identification symbols under the identification line on the lawyers' correspondence, when the same is made or permitted pursuant to a union contract with a local union representing the lawyer or his firm's clerical employees.
The ethical considerations recited in the formal opinion compel the conclusion that the practice which is the subject of that opinion is objectionable regardless of whether the use is merely permissive by the attorney or whether it is required by union contract. Clearly, the union cannot impose upon the attorney a practice which is considered unethical and which the attorney should not initiate on his own behalf. Therefore, for the same reasons as stated in our formal opinion, we consider the same practices to be unethical in the situation when they are made or permitted pursuant to a union contract with a local union representing the attorney or his firm's clerical employees.
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.
13(a) Upon motion made, seconded and adopted, it was
RESOLVED, in view of questions raised regarding Opinion No. 1971-24 of the Committee on Professional Ethics concerning the use of union "bug" on lawyers' letterhead or union identification line on lawyers' correspondence, that the Board determines not to act on said opinion until the matter has received further study and hereby suspends the effectiveness of said opinion until further action by the Board.
Mr. Kimbrough voted no on the motion for the adoption of the foregoing resolution and requested the record so to show.
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 I and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III. D.)]"
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