September 21, 2001
A former judge may not ethically retain the title "Honorable" after entering private practice.
References: MRPC 7.1, 7.5; RI-45, RI-110, RI-173; J-3; CI-850; Arizona Op 87-1.
A practicing lawyer who is a former judge proposes to name his/her law practice "Honorable XXX Doe and Associates" and place this on the letterhead. The stationary would also indicate the years the former judge served on the bench.
MRPC 7.1 Communication Concerning a Lawyer's Services state:
"A lawyer may, on the lawyer's own behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:
"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;
"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or
"(c) compare the lawyer's services with other lawyers' services unless the comparison can be factually
As stated in RI-173 the policy behind MRPC 7.1 is to ensure that no unjustified expectations are created for clients or potential clients, and further that clients, potential clients, and others are not deceived or mislead in any way.
MRPC 7.5 Firm Names and Letterhead states in part:
"(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and it is not otherwise in violation of Rule 7.1."
In CI-850 a retired judge who wished to indicate the previously held judicial position on letterhead could do so provided that the letterhead was not false, fraudulent or deceptive and that it was used only for personal, nonbusiness correspondence, i.e., not law firm correspondence. In citing reference to an Arizona Ethics Op 87-1, which allowed a retired judge to place on its letterhead "judge of the superior court, retired" it was the Committee's belief that the mere mention that a person is a former judge creates an expectation that such a person can achieve results which a person who is not a former judge cannot. The letterhead in this case, "Hon. XXX Doe and Associates" does not appear to be false, fraudulent or deceptive but has strong possibilities of being misleading. CI-850 was distinguished from Zaunder v. Office of Disciplinary Counsel, 471 US 626 (1985) as limited to the facts of that inquiry, i.e., a former judge who is a licensed lawyer using personal letterhead.
J-3 states that a retired judge who accepts judicial appointments may not engage in the practice of law. Therefore, even though the judge may be retired he or she may be sitting as a judge on assignment. Clients, potential clients or others may not know the difference and have unjustified expectations based on the status as "Honorable." Even the years of service on the bench being indicated on the stationary does not eliminate the confusion that may result on the part of the receiver of the document.
RI-45 states that in sum, the rules require that lawyers be honest and clear in the representations that they make to the public regarding the nature of their practices. Firm names, letterhead, office signs, court pleadings, advertisements and all other communications must accurately describe the nature of the relationship with other lawyers. Consumers of legal services have a right to understand what individual or entity they can look to for the provision of legal services and who they can hold responsible for the manner in which those services are provided.
RI-110 states that a lawyer who serves as a full-time administrative hearing official is not per se prohibited by ethic rules from engaging in the private practice of law. However, the lawyer who conducts a private law practice while serving as an administrative hearing official may not list the public position on the law firm letterhead.
In this fact situation even though the definition of "Honorable" in Black's Law Dictionary can be used for various classes of officials and judges it is most commonly associated with the judiciary. "Honorable" on letterhead can be unclear even if indicated that an attorney is retired he/she still could be "Honorable" if on assignment as a retired judge and then pursuant to J-3 may not engage in the practice of law. An individual could be mislead by the reference to "Honorable" not knowing that if a retired judge is practicing law they are prohibited from sitting as a judge on assignment. The reference to "Honorable," which has definite status implications in our society, could lead a person to believe that this individual could achieve results that a person who is not a former judge cannot.