Formal Opinion 22.
Attorney's Writing About His Pending Case
(1953)

The Committee on Legal Ethics considered the following matter, submitted in your letter which we set out:

"I would like your opinion on the following question. Several months ago I tried a suit before the Tax Court of the United States, it being the first case to be tried under a section of the Internal Revenue Code. In a current issue of Tax magazine, which is circulated nationally, there appears an article written by a certified public accountant who has no connection with or direct interest in the case which I tried, discussing certain questions under the section of the Internal Revenue Code which were involved in my case. I do not agree with some of his conclusions and arguments, and because the question is one of wide-spread interest to some of the largest industries in this part of the country, I would like to prepare and submit to Tax magazine an article discussing the same question and pointing out what I consider to be the correct views.

"The questions which I would like to discuss are directly involved in the case above mentioned. My case is now pending before the Tax Court, and the judge who heard it will probably not render his decision until next summer or fall. I have filed my opening brief in the Tax Court, but the respondent has not yet filed his.

"I would like your views as to the propriety of my writing and having published in this magazine the article which I would like to prepare as above indicated. It is probable the tax court judge reads the magazine in question.

"Because of the time element involved, I would appreciate your early consideration of this question."

This committee is of the opinion that the above inquiry comes within the provisions of Canon 40, and such an article may be published. Canon 40 provides:

"A lawyer may with propriety write articles for publications in which he gives information upon the law; but he should not accept employment from such publications to advise inquirers in respect to their individual rights."

It is stated further that the specific matter has been tried and is now under advisement by the court.

Canon 20 provides:

"Newspaper publications by a lawyer as to pending or anticipated litigation may interfere with a fair trial in the courts and otherwise prejudice the due administration of justice. Generally they are to be condemned. If the extreme circumstances of a particular case justify a statement to the public, it is unprofessional to make it anonymously. An ex parte reference to the facts should not go beyond quotation from the records and papers on file in the court; but even in extreme cases it is better to avoid any ex parte statement."

We do not believe Canon 20 is applicable here.

Canon 20 seeks to prevent a "trial by newspaper so as to impair the opportunity for an unprejudiced trial."

If the article proposed to be published in Tax magazine makes no specific reference to the facts, but confines itself to a discussion of the principles of law involved, we believe the Canons of Ethics will not be violated.