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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What are the ethical responsibilities with respect to an attorney's participation in a lecture series to be reproduced on cable television?
Rules 2 and 18 of the Rules of Professional Conduct of the State Bar.1
The opinion of this Committee is sought as to whether it is ethical for an attorney, in conjunction with an insurance specialist and investment specialist, to participate in a series of six to eight lectures or seminars on estate planning and investments, to be presented to members of the public at a college, when said lectures or seminars will be televised and reproduced on a cable television system. The lecture or seminars would be presented in a desert community and would be televised to residents of that area only.
The attorney requesting the opinion has stated as follows:
(a) Those persons attending the lectures or seminars would be charged a moderate attendance fee by the college;
(b) Those persons viewing the lectures as reproduced on television would be customers of the cable television communication company who have paid a fee to the company;
(c) The primary purpose of the lectures or seminars would be to satisfy a public need for residents of the desert area; and,
(d) The moderator would be a member of the college faculty.
On January 21, 1969, this Committee adopted opinion No. 1969-17 (44 State Bar J. 202) which stated that it would be unethical for an attorney in a small town to appear on a local radio station and talk with members of the radio audience who called the station during the broadcast. The thrust of the opinion was that such conduct would result in solicitation by advertising, which is proscribed by rule 2, section a, subdivision (2), of the Rules of Professional Conduct.
Rule 2, section a, subdivision (2), of the Rules of Professional Conduct provides, in part, as follows:
"A member of the State Bar shall not solicit professional employment by advertising or otherwise. Without limiting the generality of the foregoing a member of the State Bar shall not solicit professional employment by
...
(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..."
The facts in the instant ease differentiate it from the situation where the attorney propose(1 to answer questions on a local radio broadcast. The attorney in the instant case would engage in no conversations with the television audience, and the televised proceedings would be taped and shown at a time subsequent to the presentation of the lectures or seminars.
On October 13, 1967, this Committee adopted opinion No. 1967-12 (43 State Bar J. 52) which, based upon certain conditions, held that it was ethical for an attorney to offer and conduct a private course in which the attorney would lecture and instruct businesspersons or other laypersons in the fundamentals of certain areas of the law. The said conditions were as follows:
1. The course was not a course preparatory to the practice of law;
2. Only hypothetical questions would be asked or answered during the lectures;
3. Lectures would not be given at a law office;
4. The attorney would not accept any of those he lectured as either his law clients or as clients of his law firm, nor would he refer them to any other lawyer;
5. Any advertising of the course would refer to the course only and that it was to be given by a member of the California bar; and,
6. The name of the attorney giving the course, the name of his law firm, his office address, and his office telephone number would not appear in advertising pertaining to the course.
The 1967 opinion states, in part, as follows:
"The conditions under which the lectures would be given under the facts before us seem to eliminate either self-laudation or advertising or solicitation so far as the member of the bar giving the lecture is concerned."
There are at least two factors present in the instant situation which differentiate it from the facts stated in the 1967 opinion:
1. The attorney in the instant case proposes to participate in a series of lectures or seminars with nonlawyers; and,
2. The lectures or seminars in the instant case would be reproduced on cable television.
The joint appearance with nonlawyers is a difference without a distinction, and would be proper. The apparent significance of the reproduction of the lectures or seminars on cable television is that a substantial number of people would see the attorney and might therefore endeavor to retain the attorney to represent them, especially in estate planning matters. A layperson might believe that, because the attorney was selected by the college to participate in the program and the program was selected by the cable television firm for reproduction, the attorney must be an expert in the estate planning field.
Whatever the impact of the attorney's participation may be, and whether he is to be the moderator or one of the participants, the Committee is of the opinion that the appearance of the attorney on cable television, under the facts stated, would be ethical and proper under the same conditions stated in opinion No. 1967-12 and the following additional conditions:
1. During the series of lectures or seminars, including the televising of them, only the name of the attorney and the fact that he is a member of The State Bar of California should be stated, and no other information concerning the attorney or his qualifications should be furnished;
2. The attorney should not accept as clients any persons who seek to retain his services solely because of the televising of the lectures or seminars on cable television;
3. The television tape of the lectures or seminars should not be used for commercial purposes;
4. The attorney should retain the right to approve of the television tape before it is presented on the cable television system, and he should consider having it reviewed by his local bar association;
5. In the event that there is to be a question and answer period at the lectures or seminars, the attorney is admonished of the content of rule 18 of the Rules of Professional Conduct, as follows:
"A member of the State Bar shall not advise inquirers or render opinions to them through or in connection with a newspaper, radio or other publicity medium of any kind in respect to their specific legal problems, whether or not such attorney shall be compensated for his services."
6. The attorney should caution members of the audience that they should not attempt to solve their individual legal problems in the estate planning field on the basis of the statements made by him during the lectures or seminars, since slight changes in fact situations may require a material variance in applicable advice; and,
7. The attorney should refrain from making any self-laudatory remarks and should refrain from discussing any case he is participating in or has participated in.
An important function of the legal profession is to aid laypersons to recognize their legal problems since such problems may not be self-revealing and often are not timely noticed. Attorneys acting under proper auspices should encourage and participate in educational programs concerning our legal system, with particular reference to legal problems that frequently arise. Such educational programs should be motivated by a desire to benefit the public and not to obtain publicity or employment for the participating attorney.
An attorney's participation under the conditions stated and prescribed herein would not, in the Committee's opinion, be for purposes for soliciting professional employment, advertising or self-laudation.
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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