Opinion 69-8
FLORIDA BAR ETHICS OPINION OPINION 69-8 May 9, 1968 Advisory ethics opinions are not binding. A Florida lawyer may permit his listing under the classified headings of “patent lawyers” and “lawyers” in a telephone directory, so long as he is duly qualified to practice before the United States Patent Office. Opinions 64-76 and 68-39 are overruled. Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22. Canons: Opinions: Case: 27, 45 and 46 64-76 and 68-39; ABA 286; and Texas 289 Silverman v. State Bar of Texas, 405 F.2d 410 (5th Cir. 1968) Chairman MacDonald stated the opinion of the committee: In its Opinion 64-76, this Committee held that members of The Florida Bar, qualified appropriately to practice as patent lawyers before the United States Patent Office, might be listed in the classified pages of the telephone directory either under the listing “patent lawyers” or under the heading “lawyers” (or “attorneys”), but not under both. In our Opinion 68-39, we reiterated the opinion expressed in 64-76, pointing out that our earlier opinion had gone somewhat beyond ABA Opinion 286, which, in effect, precluded lawyers engaged in the practice of patent law from being listed in classified or yellow pages under special headings for patent attorneys. However, most recently, in the case of Silverman v. State Bar of Texas, 405 F.2d 410 (5th Cir. 1968), the United States Court of Appeals for the Fifth Circuit has held unenforceable Opinion 289 of the State Bar of Texas construing Canons 24, 39, 41 and 42 of the State Bar 1 to preclude a member of the Texas Bar registered before the Patent Office from listing his name under the heading “patent attorneys” unless he limited his practice exclusively to patent law. The Court reasoned, in effect, that such interpretation of the Canons, which were regarded as quasi statutory, was inconsistent with rights granted under federal law to the holder of a license to practice before a federal agency. We are now asked whether the effect of the Silverman case is not to overrule our 64-76 and 68-39, the inquirer obviously having in mind that any federal court in Florida considering a cause instituted by a Florida lawyer would presumably be bound by the reasoning adopted by the United States Court of Appeals for the Fifth Circuit. Four members of this Committee conclude that the reasoning set forth in 64-76 and 68-39 is erroneous and that Canons 27 and 46 should not be interpreted to preclude a listing under the 1 The counterpart in ABA and Florida Canons being 27, 45 and 46. heading “patent lawyers” in addition to that under the heading of “lawyers,” if the lawyer is qualified to practice before the Patent Office. One member of the Committee feels that the reasoning was entirely correct, but has been invalidated by the Silverman case, and accordingly, a majority of five conclude that a Florida lawyer may now lawfully permit his listing under the classified heading of “patent lawyers” and “lawyers,” so long as he is in fact duly qualified to practice before the United States Patent Office. A vigorous minority of four argue that an interpretation of the Silverman case is one of law beyond the jurisdiction of this Committee, pointing out that the obligation of this Committee to interpret the Canons as adopted by the Supreme Court of Florida is to interpret them as promulgated so as to set forth that level of conduct to which lawyers should aspire, not the minimum to which they may legally resort. However, as noted, four members of the majority do not reach this issue because they interpret the Canons as promulgated to require the result ultimately obtained in the Silverman litigation.