BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS

Opinion No. 1996-12

(Inquiry No. )

Topics:
Propriety of two or more attorneys joining together to advertise their separate legal practices in one advertisement where there is no professional relationship between the attorneys other than the sharing of office space.
Digest:
An attorney may advertise together with another attorney in a single advertisement where there is no professional relationship between the two attorneys other than the sharing of office space, provided that the advertisement does not mislead the likely reader into believing that there is in fact a relationship between the attorneys. The attorneys may not use the term “specialist” in the advertisement.
Code Provisions:
DR 2-101(A)
DR 2-102
DR 2-105
EC 2-13
Facts Presented:
A sole practitioner, Attorney A, shares office space with another sole practitioner, Attorney B. They have no further professional relationship. Presently, each of the attorneys advertises separately in the yellow pages. Inquiring attorney asks if it would be appropriate for the two of them to join their advertisements into one advertisement which would solicit potential personal injury clients for Attorney A and clients in criminal cases for Attorney B. Included within the advertisement would be, in addition to the attorneys’ names, addresses, phone numbers etc., reference to their “specialties.”
Inquiry:

1. May an attorney who has no professional relationship with another attorney other than the sharing of office space join together in advertising legal services in a single advertisement which solicits potential clients for their different practice areas through the presentation of both of their names, addresses and phone numbers?

2. May an attorney solicit clients through advertisements promoting professional legal services containing a reference to the attorney’s “specialty” in a particular area of the law?
Determination:
1. Yes, subject to certain restrictions.
2. No.
Analysis:
Inquiry #1.

In Bates v. State Bar of Arizona, 433 U.S. 350 (1977), the Supreme Court of the United States determined that lawyer advertising was entitled to protection under the First Amendment. That Court held that lawyer advertising was commercial speech and was therefore entitled to some constitutional protection. The Court permitted States to adopt reasonable regulations to insure that lawyer advertising is neither false nor misleading.

DR 2-101(A), reflects the Code of Professional Responsibility’s codification of the Bates decision:

A lawyer on behalf of himself or herself or partners or associates, shall not use or disseminate or participants in the preparation or dissemination of any public communication containing statements or claims that are false, deceptive, misleading or cast reflection on the legal profession as a whole.

DR 2-102 comments directly on the issue of accurate representation of partnership relationships:

A lawyer shall not hold himself or herself out as having a partnership with one or more other lawyers unless they are in fact partners.

Moreover, EC 2-13 informs both of the above Disciplinary Rules by stating:

In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status. A lawyer should not hold himself or herself out as being a partner or associate of a law firm if not one in fact, and thus should not hold himself or herself out as being a partner or associate if the lawyer only shares offices with another lawyer.

As DR 2-102 clearly prohibits an attorney from holding himself out to be a partner where no such partnership exists, and DR 2-101(A) requires that an attorney be forthright in his advertising, this portion of the inquiry must be resolved by stating that the attorney may advertise as he inquires, but with the strong caution that the advertisement in question must unquestionably present to the public a joint advertisement of two unrelated and independent practitioners.

The Committee cautions that any such joint advertising must make the representation to the public that the attorneys who are jointly advertising are independent practitioners, either through appropriate physical bifurcation of the advertisement or via meaningful express language prominently mentioned in the advertisement, clearly informing the public that the attorneys are not a partnership and are independent sole practitioners. The purpose for this is simple. A potential client must be able to tell from the first reading of the advertisement that they are not engaging a partnership but a sole practitioner. The likely readers must be able to glean from the advertisement without having to untangle any artifice or trickery, that they are hiring a single attorney who just so happens to be running an advertisement with another independent and unaffiliated attorney.

The Committee further cautions that an advertisement that uses hidden conditioning language or other confusing or deceptive stratagems will run afoul of DR 2-101(A) and DR 1-102(C). See Nassau Bar Ethics Op. No. 95-14 (1995).

Inquiry #2. May lawyers advertise that they are “specialists” in particular areas?

Attorneys may not hold themselves out as “specialists” in the State of New York at this time except in the traditional areas of trademark, patent and admiralty law. See DR 2-105 and Nassau Bar Ethics Op. No. 96-11 (1996).

[Approved by the Executive Subcommittee on 9/17/96; approved by the Full Ethics Committee on 9/25/96.]