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January 2019 | Ethics in View

Communication with the public: The good old days never were

by Dennis Rendleman, ABA Ethics Counsel

“I'm dreaming of a white Christmas, With every Christmas card I write...” 
–       Irving Berlin

In August 2018, the ABA House of Delegates approved amendments to the Model Rules of Professional Conduct, Rules 7.1 through 7.5, condensing them into new Rules 7.1 through 7.3. The new rules provide for a more streamlined regulation of lawyers’ communication about their services.     

The issue of “lawyer advertising” has long been a shibboleth. The Final Report of the Committee on the Code of Professional Ethics in May 1908 proposed a Canon 27 that said, in pertinent part:

But solicitation of business by circulars or advertisements, or by personal communications or interviews, not warranted by personal relations, is unprofessional. It is equally unprofessional to procure business by indirection through touters of any kind, whether allied real estate firms or trust companies advertising to secure the drawing of deeds or wills or offering retainers in exchange for executorships or trusteeships to be influenced by the lawyer.

As the classic book “Unequal Justice” by Jerrold Auerbach notes, in discussing the original ABA Canons:

The prohibition against advertising instructed lawyers that success flowed from their “character and conduct,” not from aggressive solicitation. It thereby rewarded the lawyer whose law-firm partners and social contacts made advertising unnecessary at the same time that it attributed inferior character and unethical behavior to attorneys who could not afford to sit passively in their offices awaiting clients; it thus penalized both them and their potential clients, who might not know whether they had a valid legal claim or where, if they did, to obtain legal assistance.

(Auerbach, p. 43)

Prior to the U.S. Supreme Court opinion in Bates v. State of Arizona, 433 U.S. 350 (1977) virtually all lawyer advertising to the public was prohibited. Which brings us to the seasonal ethical points of this story.

In 1963, under the old anti-advertising regime, ABA Formal Opinion 309 interpreted Canon 27 and concluded:

Christmas cards and other seasonal greetings should never be sent in the firm name or by an individual in his capacity as an attorney and should not refer to the sender’s profession, except as they may picture lawyers, judges, or symbols of the legal profession in a holiday context. They should not be sent to clients or other lawyers as such but only to those with whom a personal relationship with the sender exists.

This opinion was a consolidated statement of prior Formal Opinions 107 and 293 and some informal decisions. Most striking, in the text of Opinion 309, the committee states: “there can be no justification for a lawyer sending out Christmas cards or similar greetings in his firm name or otherwise in his capacity as a lawyer.”

The Texas Committee on Professional Ethics in 1974 followed this precedent in Opinion 372.  Under then Disciplinary Rule 2-101, Texas concluded that, “It is improper for an attorney to send Christmas cards which state that he is a practicing attorney either on the card or on the envelope to clients or the general public, though such a card may be sent to another attorney.”

The question remains: Who ever thought that a lawyer sending a holiday card to a client or potential client was going to convince that person to become a client?  Or undermine the integrity of the legal system?

A different and more serious question has arisen under judicial ethics – to what extent may a judge or a judge’s staff accept holiday or any other gift?  The ABA Model Code of Judicial Conduct (MCJC) Rule 3.13 addresses acceptance and reporting of gifts by judges. 

Cynthia Gray at the Center for Judicial Ethics of the National Center for State Courts noted that as of 2017, judicial ethics committees, nationally, are split on the issue. For example, Kentucky, Texas, West Virginia and Florida preclude judges from accepting even a nominal gift or, as the MCJC Rule 3.13(B)(1) phrases it, “items with little intrinsic value.” However, other states have focused on a standard akin MCJC Rule 3.13(B)(1) and 3.13(B)(3), which allows for gifts of “ordinary social hospitality” but prohibits any gift that “would appear to a reasonable person to undermine the judge’s independence, integrity, or impartiality.”

Regardless of holiday cards to clients or ordinary social hospitality to judges, some holiday ethical issues can simply be poetic. A few years ago, in one divorce case that had lingered for more than a decade, the judge who had been presiding died. One of the frustrated lawyers sought a ruling on a fee petition in a poetic form. His opposing counsel – apparently lacking a sense of the season or doggerel – called the filing “outrageously offensive, utterly unprofessional.” (Whether opposing counsel was referring to the broken meter or the theme is a mystery.) While ignoring the rhythmically challenged style, the new presiding officer declined to hold the lawyer in contempt and left any ethical violation to the disciplinary authority. No evidence of disciplinary action has been discovered. 

In the spirit of the season, knowing that the majority of complaints about lawyer advertising are filed by other lawyers, and during which everyone is too serious to laugh, herewith are the first and final stanzas of that poetic fee petition (with apologies to Clement Moore):

Twas the week before Christmas, in the Matrimonial Part,
All the creatures were stirring, putting their horse in front of the cart.
The fee applications were pending, bills demanding to be paid,
In hopes that Drew’s resolve, soon would fade.
Tis the season for giving and to be jolly,
There must someday be an end to this folly.
A Final Judgment of Divorce be entered, whether fair, wrong or right,
Merry Christmas to All, and to All a Good-Night!

Perhaps a better ode to an Old Christmas Card was sung by Jim Reeves.

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