Can a lawyer let a corporation list them as its counsel in the company's published financial statement?

Plain-English summary

The committee was asked whether an attorney could permit being listed as counsel, attorney, or associate attorney for a corporation in the company's financial statement or report, in two settings: a statement published in a newspaper of general circulation, and a printed report sent only to stockholders or members.

The committee started from the duty under DR 2-101(A) and (B) that a lawyer not advertise or publicize himself, directly or indirectly, which includes not permitting others to do so on his behalf. It drew on ABA Opinion 285 (1951) for the principle that the rule does not condemn every allusion to a lawyer where the purpose of the statement is not to advertise the lawyer but is primarily in the interest of the party making it. The Code recognized that limited, dignified identification of a lawyer is proper in certain situations: under DR 2-101(B)(2), in public notices where the identification is required or authorized by law or is reasonably pertinent for a purpose other than attracting clients; and under DR 2-101(B)(3), in routine reports and announcements of a bona fide business, civic, professional, or political organization in which the lawyer serves as a director or officer.

Applying those provisions, the committee concluded that naming counsel for a corporation in its statement of condition published in a newspaper of general circulation would not normally accomplish any purpose of importance to the corporation or the public, so its inclusion in such a public notice would not be proper. It contrasted situations where public identification of a lawyer is of importance to third parties, such as certifying the validity of a municipal bond issue (ABA 290 (1956)), a published notice forming a bondholders' protective committee (ABA 100 (1933)), or legal notices required in connection with legal proceedings (ABA 299 (1961)). The committee also noted exceptions drawn from ABA Informal Opinions 645 (1963) and 839 (1965): a lawyer who is a full-time employee of the corporation raises no advertising question, and a lawyer-director may be identified by profession or firm name where the corporation's practice is to list each director by principal occupation.

Currency note

This opinion was issued in 1971, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009; the publicity restrictions it analyzed under DR 2-101 are now governed by the lawyer-advertising rules, principally Rule 7.1 and Rule 7.2. Subsequent rule amendments, and court decisions on lawyer advertising after this opinion, may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Could a lawyer be named as counsel in a corporation's financial statement printed in a newspaper?

A: Under this opinion, no, not ordinarily; the committee found that listing counsel in a statement of condition published in a newspaper of general circulation served no important purpose and was an improper public notice under DR 2-101.

Q: Was it different for a report sent only to stockholders?

A: Yes. The committee found that identifying counsel in a report distributed only to stockholders or members would be proper, distinguishing it from publication to the general public.

Q: Did the restriction apply to a lawyer who worked for the corporation full time?

A: No. The opinion noted, following ABA Informal Opinions 645 and 839, that a full-time employee-lawyer raises no advertising question, and that a lawyer-director may be identified by occupation where directors are routinely listed that way.

Background and rules framework

The opinion applied the New York Code of Professional Responsibility's advertising restrictions: DR 2-101(A) and (B), barring a lawyer from publicizing himself or permitting others to do so, subject to the limited-identification exceptions in DR 2-101(B)(2) (public notices required or authorized by law, or reasonably pertinent for a non-client-attracting purpose) and DR 2-101(B)(3) (routine reports and announcements of an organization in which the lawyer is a director or officer). It also invoked Canon 9's direction to avoid even the appearance of impropriety. The current New York analogue for these publicity questions is the lawyer-advertising regime of Rules 7.1 and 7.2.

Citations and references

Rules of Professional Conduct:

• MR 7.2 (advertising)
• NY Canon 9; DR 2-101(A); DR 2-101(B)(2); DR 2-101(B)(3)

Other opinions cited:

• ABA Formal Op. 285 (1951): allusions to a lawyer where the statement primarily serves the party making it
• ABA Formal Op. 290 (1956): identifying counsel certifying a municipal bond issue
• ABA Formal Op. 100 (1933): naming counsel in a bondholders' protective committee notice
• ABA Formal Op. 299 (1961): naming counsel in legal notices required in proceedings
• ABA Informal Ops. 645 (1963) and 839 (1965): full-time employee-lawyers and lawyer-directors

See also

• TX Ethics Op. 103: Indicating one's profession on cards and listings
• TX Ethics Op. 120: Classified newspaper advertisement by a lawyer

Source

• Landing page: https://nysba.org/ethics-opinion-201/