UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 94-36
Lawyer formerly served as a government lawyer for the state. Lawyer is now in private practice and is designing a business card.
Questions:
1. May a former government lawyer display the state seal on a professional card?
2. May a former government lawyer use the scales of justice on a professional card?
3. Would the response to either question differ if the lawyer had been a constitutional officer of the state and supervised lawyers representing the state and its agencies in civil and criminal matters?
Summary:
Illustrations on professional cards must not convey a false or misleading message. While use of the scales of justice by a lawyer appears appropriate, use of the state seal by a lawyer no longer employed by the state would appear misleading. The result does not depend upon whether the lawyer is a former constitutional officer.
Opinion:
Distribution of professional cards can serve as a form of advertising or solicitation by a lawyer and, thus, the content of the cards must not violate the Rules of Professional Conduct governing commercial speech by lawyers. The use of appropriate illustrations by lawyers in adverting and solicitation materials is allowed under current rules. In Zauderer v. Office of Disciplinary Counsel, 471 U. S. 626 (1985), the United States Supreme Court struck down as unconstitutional an Ohio rule prohibiting all illustrations in lawyer advertising materials. The Court there held that illustrations attract "the attention of the audience to the advertiser's message" and thus are afforded the same First Amendment protections as verbal commercial speech. Illustrations, however, are subject to appropriate regulations requiring that the illustrations not be false or misleading. (Rule 7.1) The proposed use of the state seal on professional cards may suggest to the recipient of the card that the lawyer is a current government employee or state official. Because the lawyer no longer is in government practice, the continued use of the state seal would appear to violate Rule 7.1. The committee offers no opinion on the further question of whether the use of the state seal might violate state law. The scales of justice, on the other hand, are commonly associated with the practice of law and would seem to suggest only that the card is of a legal professional. Because that visual message is accurate in this case, use of the scales would not violate any rule of conduct.
Finally, the fact that the lawyer may have been a constitutional officer of the state in the past would not alter the analysis regarding the propriety of including these illustrations on a professional card.