Editor's Note: DR 2-l01 (A)--has been amended. See new DR 2-l01 (A).
ADVERTISING- Propriety of Attorney's Appearance on Public Service Newscast.
The Ethics Committee of the Mississippi State Bar Association has received a proper request for the rendition of an opinion concerning the following hypothesized conduct, to wit:
The attorney has been asked to be part of a feature story on a local T.V. news station concerning bankruptcy and the legal aspects for filing the same. He was asked to comment on various aspects of the exemptions entitled to bankrupts, the mechanics of filing the bankruptcy itself, the effects generally of taking bankruptcy upon a person's credit reputation, and some aspect of the fees that are generally charged the bankrupts.
The format of the broadcast was to be a feature story on local evening news with no suggestions concerning solicitation of clients or that the attorney held himself as specializing in the field of bankruptcy law.
Disciplinary Rule DR2-101(A) of the Mississippi State Bar Code of Professional Responsibility provides that:
A lawyer shall not prepare, cause to be prepared, used, 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.
Canon 2 of the Code mandates that "a lawyer should assist the legal professional in fulfilling its duty to make legal counsel available." The aspirational goals of Canon 2 provide in part as follows:
EC2-1. The need of members of the public for legal services is met only if they recognize their legal problems, appreciate the importance of seeking assistance, and are able to obtain the services of acceptable legal counsel. Hence, important functions of the legal profession are to educate laymen to recognize their problems, to facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available.
EC2-2. The legal profession should assist laymen to recognize legal problems because such problems may not be self-revealing and often are not timely noticed. Therefore, lawyers acting under proper auspices should encourage and participate in educational and public relations programs concerning our legal system with particular reference to legal problems that frequently arise. Such educational programs should be motivated by a desire to benefit the public rather than to obtain publicity or employment for particular lawyers. Examples of permissible activities include preparation of institutional advertisements and professional articles or lay publication and participation in seminars, lectures and civic programs. But a lawyer who participates in such activity should shun personal publicity.
The American Bar Association Committee on Ethics and Professional Responsibility in Informal Opinion 1464 rendered November 10, 1980, addressed conduct very similar to the hypothesized conduct presented here. There, the question was the use of public service columns on areas of legal general interest. The ABA Committee opined passing on the issue presented to it in part as follows:
As early as 1928, the American Bar Association recognized that a lawyer may, with ethical propriety, write articles for newspaper publication in which he gives information about the law, so long as he does not thereby purport to give advice to particular persons about their individual rights. Canon 40, Canon's of Professional Ethics: Informal Opinion 538 (1962) . . . The Model Code of Professional Responsibility, as adopted in 1969, also recognized the propriety and desirability of articles by lawyers for publication in lay periodicals to educate members of the public to recognize legal problems, so long as the lawyers do not emphasize their own experience or reputation and do not undertake to give individual advice. DR2-104(A) (4); EC2-5; EC2-5.
It is the Committee's opinion that the attorney may appear on the television public service newscast for the purposes specified in the hypothesized factual situation, so long as the attorney refrains from giving, or appearing to give advice to particular persons about their individual rights and refrains from holding himself out as a specialist in the particular field of law which is the subject of the newscast.