The Florida Bar
OPINION 75-16A Lawyer may prepare and contribute articles on general legal subjects to requesting newspapers. An attorney-author of such articles may be identified by name and as an attorney.
December 22, 1975
December 22, 1975
CPR: EC 2-2; DR 2-104(A)(4)
Opinions: 70-60, 74-41, 68-30; ABA Formal 92, 162, 298; ABA Informal C-230(g), 1094, 1090 and 1198
Vice Chairman Sullivan stated the opinion of the committee:
A local community newspaper has asked a member of The Florida Bar to contribute a number of guest columns to the paper. He has agreed to do so and proposes to write articles on general legal subjects such as gun control laws and the constitutional rights of a defendant in a criminal case, including the right to counsel. The articles would not purport to give individual advice.
He asks: (1) whether he may with propriety contribute articles on those and other general topics; and (2) to what extent he may properly be identified as the author of those articles or as an attorney.
1. The Committee is of the opinion that the preparation and contribution of such articles is permissible, DR 2-104(A)(4), and, subject to the provisions of EC 2-2, to be encouraged.
2. The Committee is divided on this question, but a majority is of the opinion that it is permissible to identify the author by name and as an attorney. DR 2-104(A)(4) recognizes the right of a lawyer to speak publicly or write for publication on legal topics as long as the author does not emphasize his own experience or reputation. That provision does not deal with identification of the author by name or profession.
EC 2-2 encourages lawyers to participate in programs concerning our legal system and legal problems that frequently arise, but cautions that the lawyer should shun personal publicity. It lists as examples of permissible activities the preparation of articles for lay publications and participation in seminars, lectures and civic programs.
In prior Opinion 68-30 [since withdrawn] this Committee stated that a lawyer who wrote a weekly column for a newspaper could properly have a by-line but could not be identified in the column as a lawyer. In Opinions 70-60 and 74-41 [both since withdrawn] we took a more restrictive position and condemned identifying the lawyer-author by name or as a lawyer.
Revisiting the question, it seems to a majority of the Committee that encouraging lawyers to write professional articles for lay publications but restricting them to complete anonymity is akin to the line of making an omelette without breaking any eggs. Certainly no lawyer participating in the seminars, lectures and civic programs permitted by EC 2-2 is going to do so without being introduced by name and by profession. Notices or advance publicity about such lectures or seminars are meaningless without some identification of the persons lecturing or participating. Lawyers participating in public service television programs are not nameless or faceless.
The publicity resulting from a newspaper column may be great or small, depending in part on the newspaper's circulation. A series of columns may well result, sooner or later, in some recognition of the author's name. But it seems that the question of permissible identification should be not different than it is with public appearances by lawyers-permitted by DR 2-104(A)(4) and encouraged by EC 2-2.
ABA Opinions decided under the old Canons of Professional Ethics have long recognized that a lawyer may properly write and sign articles of a general nature on legal subjects which appear in newspapers or periodicals of general circulation. See Formal Opinions 92 and 162 and Formal Opinion 298 stating that attorneys and judges may appear on noncommercial information radio programs and be identified as such when the programs meet the proper standards of bench and bar.
ABA Informal Opinion C-230(g) said lawyers and judges could properly appear on "Meet The Press," a commercially sponsored public service type television program, and be identified as lawyers and judges. ABA Informal Opinion 1094 reached a similar conclusion about another program. But ABA Informal Opinion 1090, dealing with a newspaper column, reached the result we did in Opinion 68-30, permitting the author to be identified by name but not as a lawyer.
More recently, ABA Informal Opinion 1198, permitting a lawyer writing a column for a newspaper or magazine of general circulation, said that such identification serves to validate the information contained in the article. We find this persuasive and believe the requirements of anonymity of name and profession are unrealistic.
We are aware of the possibility of abuse under the protective cloak of serving the legal profession. Yet, as Opinion 70-60 stated, the good faith of the publisher and the lawyer are inherently involved in the publishing of regular and periodic newspaper columns.
We are also aware that effective participation in programs permitted and encouraged by EC 2-2 may result in publicity favorable to the lawyer. Our recent Opinion 75-10 touched on this and quoted from Drinker, Legal Ethics , a passage differentiating between publicity that is a normal by-product of able and effective service and publicity artificially stimulated by the lawyer.
We see no need, for example, to identify an author as a lawyer where an article deals with a non-legal topic. But where identity as a lawyer serves to give credibility to the author or his opinions, we believe it is permissible. We recede from the statements in our earlier Opinions prohibiting identification of a lawyer-author by name and as a lawyer with articles on legal topics of a general nature.