Legal Ethics Opinion No. 1475

               Advertising: Drafting of Legislation

You have presented a hypothetical situation in which a
governmental agency initiated drafting of a bill to amend a
Virginia law to conform to federal law concerning the same
subject.  When drafting began, three Virginia attorneys (all of
whom were employees of the agency and two of whom served,
consecutively, as the enforcing agency's delegatee for
enforcement of the law) worked together with the following
materials: the federal law, the existing Virginia law, the
Federal Register, relevant Virginia and federal case law, the
federal and state constitutions, the federal regulations, and
similar state laws.  These attorneys also consulted appropriate
federal officials in the legislative and executive branches and
similar agencies in other states and Virginia, attended federal
seminars on the legislation, and drew on other such resources in
drafting the bill.  They also prepared suggested alternative
approaches to, and language for, use in the event of anticipated
trouble with particular portions in the proposed legislation.

You further indicate that the draft was introduced as a bill, and
it: (1) preserved much of the content of the old law; (2)
contained original material and ideas of the attorneys (not found
in federal or prior state law); (3) contained material borrowed
directly from federal law and regulations; (4) substantially
restructured the law within its existing general structure; and
(5) added sections which, while not innovative or unique, were
not in prior Virginia or federal law.

You advise that, after the bill was introduced, it went through
the ordinary processes: comment by the public and agencies;
review by the Attorney General's Office, the Governor's Office
and Legislative Services; hearings in the General Assembly;
agency impact analyses, etc.  The bill was tabled pending changes
to incorporate the results of these processes. All three
attorneys left the agency before the process was complete: two
left before the bill was introduced.  One had made continuing
drafting contributions and participated in an official capacity
in the legislative process for a year and a half, including
examining comment and review, reviewing and researching proposed
changes, preparing agency impact statements and drafting agency
responses to proposed changes; the other two attorneys had
contributed about a year during the same period.

After the last of the three attorneys had left, a fourth
attorney, a part-time agency employee assigned to work on the
bill, incorporated the review and commentary changes, and the
proposed legislation was brought back before the legislature as
an amendment in the nature of a substitute. You indicate that the
fourth attorney added no original ideas or material; his
contribution was to incorporate agency and public comment,
changes worked out through the political process, language
advised by or provided by the Attorney General's Office and
additional language from federal law and regulations.  That
[fourth] attorney consulted the original law, the bill, federal
law and regulations, and similar state laws.  The restructuring
of the law and unique language and ideas produced by the first
three attorneys remained intact and some of the first three
attorneys' suggested alternate approaches and language (prepared
in anticipation of trouble areas) was included in the fourth
attorney's changes.  The fourth attorney describes his
contributions as having been completed in a matter of weeks. 

The amendment in the nature of a substitute was adopted and is
the current Virginia law.  None of the attorneys represented the
agency or stood in an attorney-client relationship to any agency.

You have raised several questions all relative to the four
attorneys presenting their credentials in having participated in
the drafting of the law in question.

The appropriate and controlling Disciplinary Rules related to
your inquiry are DRs 2-101(A) which provides that a lawyer shall
not, on behalf of himself or any other lawyer affiliated with him
or his firm, use or participate in the use of any form of public
communication if such communication contains a false, fraudulent,
misleading, or deceptive statement or claim; 2-102(A) which
states that a lawyer or a law firm may use or participate in the
use of a professional notice or device unless it includes a
statement or claim that is false, fraudulent, misleading, or
deceptive; and 2-104(A) and (B) which provide, respectively, that
a lawyer shall not hold himself out publicly as, or imply that he
is, a recognized or certified specialist except in certain
limited areas and 
that a lawyer may state, announce or hold himself out as limiting
his practice to a particular area or field of law so long as his
communication of such limitation is in accordance with the
standards of DR 2-101, DR 2-102, or DR 2-103, as appropriate.

The committee responds to your inquiries relative to the facts
you have presented as follows:

     1.   With regard to whether it would be improper for any of
          the attorneys to hold himself out as a "co-drafter" or
          "contributing drafter" of the current Virginia law, the
          committee is of the view that it would not be improper
          under DR 2-101(A).  The committee is of the opinion
          that such designation accurately reflects the
          participatory nature of the drafting process and that
          it does not imply that any one person was solely
          responsible for the law's writing or passage. 

     2.   The committee is of the opinion that both variations on
          your first inquiry, i.e., (1) representations intended
          to attract clients concerned with or seeking advice in
          the area covered by the law, and (2) representations
          made in descriptions of the attorneys' credentials in
          CLE materials or in other places in which they may
          instruct on the law, are immaterial to the conclusions
          reached above.  Thus, the committee also opines that
          the representations would not be improper under DR

     3.   With regard to whether it would be improper for the
          fourth attorney to represent that he "drafted
          Virginia's current [name of law] law", the committee
          considers such representation misleading under DR
          2-101(A). Under the hypothetical facts you have
          presented, it appears to the committee that the fourth
          attorney incorporated agency and public comments and
          changes made through the political process while
          keeping the other attorneys' work largely intact.  The
          facts also assert that the fourth attorney describes
          his contributions as having been completed in a matter
          of weeks.  The committee believes, then, that the
          fourth attorney's claim to have drafted the law
          overemphasizes and exaggerates his role in the drafting

          The committee is of the opinion that all three
          variations on your inquiry, i.e., (1) representation
          appearing in a professional notice in a publication for
          attorneys, (2) representation contained in direct mail
          solicitations of clients interested in the law, and (3)
          representation accompanied by a statement that the
          attorney is "concentrating his practice" in the area
          covered by the current law, are immaterial to the
          conclusions reached above.  The committee is of the
          further opinion that any such representations contained
          in professional notices or devices would be violative
          of DR 2-102(A).

     4.   The committee is of the view that the fourth attorney's
          representations as to the concentration of his practice
          would not be improper under DR 2-104(B), since he has
          not stated that he is a recognized or certified
          specialist in that area.  See LEO #923, 979, ll07.

Committee Opinion
October 19, 1992