Can a lawyer who is a county judge write a newspaper series on general probate and estate law?

Plain-English summary

The committee considered whether an attorney serving as county judge could write, for a local newspaper, a series of articles giving a general discussion of probate and estate law and procedure. It answered yes, within limits.

Drawing on Wise's text on Legal Ethics (page 156), the committee identified the principal concerns when an attorney addresses the public: the improper advertisement of the attorney, the giving of specific advice on actual individual legal problems without an attorney-client relationship, and enabling a lay publisher or broadcaster to give legal advice. It quoted DR 2-101(A), which bars a lawyer from preparing or participating in any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients, defining public communication to include newspapers, magazines, and books, among others. It noted that former Canon 40 had permitted an attorney to write articles giving information on the law but prohibited using publications to advise inquirers about their individual rights, a distinction repeatedly upheld in ABA ethics opinions and still in effect.

Applying these rules, the committee concluded that an attorney motivated by a sincere desire to render service may write general articles on probate and estate law and procedure for publication, so long as it is done in good taste and not in an effort to advertise himself. It made clear that any effort to discuss individual legal problems could not be condoned.

Currency note

This opinion was issued in 1973 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. It also predates Bates v. State Bar of Arizona, 433 U.S. 350 (1977), which held that categorical bans on truthful lawyer advertising violate the First Amendment and which substantially narrowed the advertising restrictions reflected in DR 2-101(A). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer-judge write a newspaper series on probate and estate law?

A: Yes. The committee held it permissible if done in good taste and from a sincere desire to render service, not to advertise himself.

Q: What may the articles not do?

A: The committee held the articles may not give specific advice on individual legal problems and may not contain self-laudatory statements calculated to attract clients (DR 2-101(A)).

Background and rules framework

The opinion applied DR 2-101(A) of the former Code of Professional Responsibility (barring self-laudatory public communications calculated to attract lay clients), building on the former Canon 40 distinction between giving general information on the law and advising individuals about their rights. The modern analog is Model Rule 7.1 (communications concerning a lawyer's services).

Citations and references

Rules of Professional Conduct:

• DR 2-101(A) (self-laudatory public communications); former Canon 40; modern analog Model Rule 7.1

Other authorities:

• Wise, Legal Ethics, page 156 (factors to guard against when a lawyer addresses the public)

See also

• KBA Ethics Op. E-110: Bar Association Newspaper Article Series

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-078.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-78
Issued: November 1973

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 an attorney serving as county judge write a series of articles for a local newspaper discussing generally probate and estate law and procedure?

Answer:

Yes.

References:

DR 2-101(A)

OPINION

An attorney serving as county judge has been asked by a local newspaper to write a series of articles containing a general discussion of probate and estate law and procedure. He inquires of the Committee whether this may ethically be done.

Wise, in his text on Legal Ethics, page 156, writes that the principal factors to be guarded against when an attorney writes, speaks or makes other contact with the general public are the improper advertisement of the attorney, the giving of specific advice on actual individual legal problems without the relationship of client and attorney, and enabling the layman publisher, radio or TV station or sponsor of a program to give legal advice. DR 2-101(A) addresses itself to the problem in this language:

A lawyer shall not prepare, cause to be prepared, use, or participate in the use of, any form of public communication that contains professionally self-laudatory statements calculated to attract lay clients; as used herein, "public communication" includes, but is not limited to communication by means of television, radio, motion picture, newspaper, magazine, or book.

Former Canon 40, in effect prior to adoption of the new Code of Professional Responsibility, permitted an attorney to write articles for publication in which he gave information upon the law but prohibited the use of publications to advise inquirers in respect to their individual rights. This distinction has repeatedly been interpreted and upheld in the opinions of the ABA Committee on Professional Ethics and is still in effect.

Applying these rules to the present inquiry, the Committee believes that an attorney motivated by a sincere desire to render service may, so long as it is done in good taste and not in an effort to advertise himself, write articles of a general nature on probate and estate law and procedure for publication. At the same time, it is clear that any effort to discuss individual legal problems cannot be condoned.

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.