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ETHICS OPINION 332-1935
NUMBER 332 1935
Question. A, an attorney at law, concludes that he may secure profitable employment in the handling of matters connected with the registration of trade-marks. Knowing that a layman may handle such matters, A advertises that he is prepared to attend to the business stated. No advertisement mentions the fact that A is an attorney at law, and his office letterhead omits any reference to such fact, Business comes to A from his advertising and in the course of handling the registration of trade-marks his customers discover that A is an attorney at law, and they request his advice in the law, and/or request A to protect their interests by legal procedure, as for instance in the case of alleged infringement of a trade-mark.
Customers having been thus attracted to A, is it proper professional conduct for A to advise said customers in the law and to undertake, as attorney for his customers, legal proceedings to enforce or protect their rights, either in trade-mark or other matters requiring legal assistance? If professional representation of such customers be improper, may A refer such customers to another attorney at law for counsel and assistance, and agree with such other attorney upon a division of fees?
Answer. It is the opinion of the Committee that when a lawyer enters the field of trade-mark practice he should be bound by the principles of the profession; and the form of proper advertising is indicated by Canons 27 and 43 of the Canons of Professional Ethics of the American Bar Association (a simple professional card containing only a statement of his name—and those of his lawyer associates—profession, address, telephone number and special branch of the profession practiced; and in reputable law lists he may in such card give references or name clients for whom the lawyer is counsel, with their permission).
In the opinion of the Committee, it is not proper professional conduct for an attorney to advertise as a layman for trade-mark business and to render other or related legal services to clients so obtained. The fact that laymen may procure and carry on such business does not in the opinion of the Committee vary the conclusion stated.
As the lawyer may not properly take a fee directly for professional employment so obtained, neither may he share in the fee by referring the client to other counsel
It has been suggested to the Committee that there is an apparent inconsistency between this answer and its answers to Opinions 58 (advertisement by lawyer, without disclosing his profession for employment to secure patents, trade-marks, and copyrights) and 195 (similar advertisement that the advertiser is an income tax consultant).
While the inquiries in those cases concerned the propriety of so advertising without disclosing the lawyer’s professional status, and did not concern, as does the present inquiry, the subsequent rights and duties of the lawyer in accepting further professional employment, secured as a resale of such advertisement, the Committee in view of such consequences, is now of the opinion that a lawyer, in advertising for employment which usually calls for his exercise of professional functions (as do the securing of patents, trade-marks and copyrights, and income tax work, because of questions of statute and administrative law necessarily arising from the employment) should preferably use the simple professional card sanctioned by Canons 27 and 43 of the Canons of Professional Ethics of the American Bar Association, in which he may properly indicate any special branch of practice in which he engages.
It is also suggested to the Committee that there is some inconsistency between its present answer and other answers (e.g., Opinions 114, 179, 284), in which the Committee expressed the view that a lawyer might properly conduct and advertise other kinds of business carried on by him, without, in such advertisement, disclosing his professional status. As there was not disclosed in these inquiries any necessary or probable call for legal services, in the conduct of such other business, the Committee does not deem it necessary to modify its answers to these last cited inquiries.