Can a patent lawyer be listed in the phone directory under both patent lawyers and lawyers headings?

Plain-English summary

In Opinion 64-76 the committee had held that a Florida lawyer qualified as a patent lawyer before the United States Patent Office could be listed in the classified directory either under "patent lawyers" or under "lawyers," but not both, and Opinion 68-39 had reaffirmed that view, noting it went somewhat beyond ABA Opinion 286. The inquirer asked whether the Fifth Circuit's decision in Silverman v. State Bar of Texas, 405 F.2d 410 (5th Cir. 1968), effectively overruled those Florida opinions. Silverman held unenforceable a Texas opinion that barred a patent-registered lawyer from listing under "patent attorneys" unless he limited his practice exclusively to patent law, reasoning that such an interpretation of the canons conflicted with rights granted under federal law to a holder of a license to practice before a federal agency.

Four members concluded that the reasoning of 64-76 and 68-39 was erroneous and that the canons should not be read to bar a dual listing for a qualified patent lawyer; a fifth member agreed in result, viewing the prior reasoning as correct but invalidated by Silverman. A majority of five therefore concluded that a Florida lawyer may be listed under both "patent lawyers" and "lawyers," so long as he is in fact duly qualified to practice before the Patent Office. A minority of four argued that interpreting Silverman was a question of law beyond the committee's jurisdiction and that the committee's task is to state the level of conduct lawyers should aspire to, not the legal minimum.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. (The opinion carries a 69-series number under the bar's numbering, but its printed date is May 9, 1968.) It applied the former Canons 27, 45, and 46 on advertising and listings. As the bar's own note states, lawyer advertising is now governed by Rules 4-7.11 through 4-7.22. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a Florida patent lawyer list under both "patent lawyers" and "lawyers"?

A: Under this opinion, yes, so long as the lawyer is in fact duly qualified to practice before the United States Patent Office. A majority of five so concluded.

Q: What changed the committee's earlier position?

A: The Fifth Circuit's decision in Silverman v. State Bar of Texas, which held that barring a patent-registered lawyer from a "patent attorneys" listing conflicted with federal rights tied to a license to practice before a federal agency. The committee overruled its contrary Opinions 64-76 and 68-39.

Background and rules framework

The opinion applied the former Canons 27, 45, and 46 on advertising and directory listings. Lawyer advertising, including listings and statements about fields of practice, is now governed by Rules 4-7.11 through 4-7.22 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 7.2.

Citations and references

Rules of Professional Conduct:

• Canons 27, 45, and 46 [Code of Professional Responsibility; advertising now in Rules 4-7.11 through 4-7.22]

Cases:

• Silverman v. State Bar of Texas, 405 F.2d 410 (5th Cir. 1968), holding unenforceable a bar opinion barring a patent-registered lawyer's listing under "patent attorneys"

Other opinions cited:

• Florida Opinions 64-76 and 68-39 [overruled by this opinion]
• ABA Opinion 286
• Texas Opinion 289

See also

• FL Bar Ethics Op. 69-20: Deceased Partner Names in PA Name

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-8-2.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

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: 27, 45 and 46
Opinions: 64-76 and 68-39; ABA 286; and Texas 289
Case: 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 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 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.