Can a Kentucky lawyer put a photograph of the lawyer's own face in an advertisement for legal services?

Plain-English summary

The committee revisited its recently adopted opinion KBA E-254 in light of the U.S. Supreme Court's decision in In the Matter of R.M.J. The question was narrow: may a lawyer place a photograph of the lawyer's own face in an advertisement for legal services? The committee answered with a qualified yes.

Reading R.M.J. together with Bates v. State Bar of Arizona and the Kentucky Supreme Court's decision in Kentucky Bar Assn v. Gangwish, the committee concluded that a photograph of a lawyer's face is not false, fraudulent, or misleading and is therefore permissible. The qualification came from the committee's own concern that a photo could still mislead: using Black's Law Dictionary's definition of misleading ("delusive, calculated to lead astray or to lead into error"), the committee said the photograph must be of recent origin. It treated a photograph more than one year old as misleading because it would mislead prospective clients about the lawyer's age.

The committee stressed that the opinion was directed solely at placing a picture of the lawyer's face in an advertisement for legal services.

Currency note

This opinion was issued in 1982 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Kentucky lawyer advertising is now governed by SCR 3.130 Rules 7.01 to 7.50 and the Attorneys' Advertising Commission Regulations. Treat this page as historical context, not current guidance.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: Could a Kentucky lawyer put a photo of their own face in a legal-services ad under this opinion?

A: Yes, with a qualification. The committee concluded that a photograph of the lawyer's face is not false, fraudulent, or misleading, relying on Bates, R.M.J., and Gangwish, so it is permissible.

Q: Why did the committee say the photo had to be recent?

A: The committee reasoned that an outdated photo could itself be misleading about the lawyer's age, and it stated that a photograph older than one year would mislead prospective clients on that point.

Q: Did this opinion address other kinds of pictures or graphics in ads?

A: No. The committee specifically noted that the opinion was directed solely at placing a picture of the lawyer's face in an advertisement for legal services.

Background and rules framework

The opinion interprets the former Code's advertising restrictions (DR 2-101), which barred false or misleading communications about a lawyer's services; the modern analog is Model Rule 7.1. The committee's analysis tracked the commercial-speech line of cases that reshaped lawyer advertising, beginning with Bates v. State Bar of Arizona (1977) and extending through In the Matter of R.M.J. (1982), under which a state may restrict only advertising that is actually false or misleading.

Citations and references

Rules of Professional Conduct:

• DR 2-101 (advertising; false or misleading communications); modern analog Model Rule 7.1

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 384 (1977), commercial-speech protection for lawyer advertising
• In the Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929 (1982), states may restrict only false or misleading lawyer advertising
• Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (1982), Kentucky application of the advertising standard

Other opinions cited:

• KBA E-254: the prior Kentucky opinion the committee reconsidered here.

See also

• KBA Ethics Op. E-285: Lighted Law Office Sign
• KBA Ethics Op. E-286: Scales of Justice on Card and Letterhead

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-263.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-263
Issued: July 1982

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May a lawyer put in an advertisement for legal services a picture of the lawyer's face?

Answer:

Qualified yes.

References:

Bates v. State Bar of Arizona, 433 U.S. 384 (1977); In the Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929 (1982); Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (1982); KBA E-254

OPINION

This opinion is in direct response to the recent Supreme Court case In the Matter of R.M.J., 455 U.S 191, 102 S.Ct. 929 (1982) and seeks to have the Ethics Committee reconsider the recently adopted KBA E-254.

In reviewing the recent cases out of the Supreme Court of the United States and Kentucky the Ethics Committee is of the opinion that a photograph of a lawyer's face would not be false, fraudulent or misleading and, therefore, is permissible Bates v. State Bar of Arizona, 433 U.S. 384 (1977); In the Matter of R.M.J., 455 U.S. 191, 102 S.Ct. 929 (1982 Kentucky Bar Assn v. Gangwish, 630 S.W.2d 66 (1982).

Black's Law Dictionary 902 (rev 5th ed 1979), defines misleading as "Delusive, calculated to lead astray or to lead into error."

It is the opinion of the Ethics Committee that a photograph may very well be misleading. In order not to be misleading a photograph of the lawyer's face must be of recent origin. The Committee feels that a photograph that is older than one year would be misleading to the prospective clients of the lawyer in that it would mislead the clients as to the age of the lawyer.

It should be specifically noted that this opinion is directed solely at the advertisement placing a picture of the lawyer's face in a lawyer's advertisement for legal services.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.