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Ethics Opinion

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CI-1065

January 29, 1985

SYLLABUS

    A lawyer may be a partner in more than one law firm and the lawyer's name may appear on the letterhead of the law firms in which the attorney in fact maintains active partnership.

    A lawyer who is also a certified public accountant may list both designations on professional cards, letterhead, and office signs of the law practice.

    A lawyer who is also a certified public accountant who lists both designations on letterhead may on that letterhead mail a communication offering services of accounting, payroll preparation, tax return preparation, and management counseling to businesses that are identified as newly registered corporations, partnerships, and sole proprietorships operating under assumed names as that group of businesses is general enough in nature for mail solicitation by lawyers if they are identified as not having a present need for legal services. Also, such a mailing permits the enclosure of a business card to be returned to the sender, even if it was framed to elicit a direct response to the account/lawyer whose name appears on the letterhead. The foregoing mailing is not prohibited when the mailing makes no reference to legal services even though letterhead implies the offering of legal services when it demonstrates the individual to be an attorney as well as a certified public accountant.

    References: MCPR DR 2-102(C); C-218; CI-944; Bates v. State Bar of Arizona, 433 US 350 (1977); Michigan Supreme Court Administrative Order 1978-4.

TEXT

An attorney who is likewise licensed as a Certified Public Accountant seeks to mail a form letter on CPA letterhead to newly registered corporations, partnerships, and sole proprietorships operating under an assumed name and also to established businesses. The letter outlines offered services of accounting, payroll preparation, tax return preparation and management consulting. The proposed letter would not refer to legal services but only to services customarily provided by CPA's. The letters would be sent to businesses for which there is no identified present need for legal services.

  1. Is it permissible to make the mailing with no references to legal services, but using a letterhead showing the attorney as well as the CPA designation?
  2. Is it improper for an attorney to request a prospective client to return a business reply card for legal services?
  3. Is it acceptable for an attorney to be a partner in two separate law partnerships and have the attorney's name appear on the letterhead of each when the attorney would in fact be an active partner in each of the partnership firms?

This Committee has previously held that a CPA who also is an attorney may list both on professional cards, letterhead, and office signs. CI-795, CI-1004.

In Bates v. State Bar of Arizona, 433 US 350 (1977), the US Supreme Court held that truthful advertising of legal services is protected by the US Constitution. Subsequently, the Michigan Supreme Court issued Administrative Order 1978-4, which provides:

    "A lawyer may on behalf of himself, his partner, or associate, or any lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false fraudulent, misleading or deceptive."

C-218 drew the distinction between permissible public communication and improper solicitation indicating that it did not lie in the mode of communication, but in the content of the communication, stating:

    "An attorney may properly advertise his or her legal services by mail. Such advertising will not constitute impermissible solicitation if it is general in nature and is not directed to or intended for potential clients with an identified present need for legal services."

General communications which advise the public about legal services available, which inform about fees and other costs and about the attorney's qualifications, and which do not unduly prompt a response, constitute permissible advertising. Communications directed to targeted potential clients with an identified need for particular legal services, framed to elicit a direct response to the attorney sender, constitute improper solicitation.

Within the context of the inquiry in the instant matter, there is certainly no difficulty with the letterhead identifying as both a CPA and attorney.

CI-944 provided a good test of a factual circumstance which delineates the intent of C-218 with respect to a mass mailing and whether or not it meets the test of general or specific mailings. Indicated there is that the conduct of an attorney advertising will be measured by the market which the attorney seeks to contact or influence. For example, if a lawyer obtained a list of companies whose labor contracts were due to expire in the next 60 days and then "targeted" them for mailing, such conduct would not be ethically proper. Such mailings would be inappropriate because the businesses would have an already identified need for a specific service.

On the other hand, if the mailings were sent to all businesses located in a particular zip code, this would probably be permissible even though, in a sense, the lawyer was targeting the mailing based on an identified geographic location. A mailing sent to businesses in one industry, such as dry cleaning or tropical fish stores, would probably be permissible. Although the businesses were targeted, the design of the mailing was not to contact businesses with an already identified need for a specific service.

In this inquiry the letters would not be sent to businesses with a present identified need for legal services. Based upon the factual circumstances set forth, the mailing to such a broad market would not be violative of legal ethical propriety regardless of whether the services offered included legal as well as accounting.

The inclusion of a business prepaid reply card likewise would not be prohibited by the constraints of C-218. The letter seeks employment as an accountant, not as a lawyer. Consequently the standards of ethics governing accountants should have primacy. Any doubt may be resolved by the inclusion in the letter of a statement clearly reflecting that the offer is of accounting and not legal services. Therefore any rules governing solicitation of legal matters do not apply since the solicitation is for work as an accountant.

Even if the proposed communication would not refer to legal services but only to services customarily provided by CPA's the inclusion of the attorney designation on the letterhead may be perceived as an implicit invitation for the receiver of the communication to contact the sender with respect to either type of services that would be requisite whether they be legal or accounting. Based upon the foregoing even if the perception is an offer of legal services, there is no ethical impropriety.

MCPR DR 2-102(C) states:

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

If an attorney is in fact a partner in more than one partnership, then there certainly would be no prohibition in his name appearing as a partner in the letterhead of each.

 
     

 

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