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Ethics Opinion

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RI-212

June 1, 1994

SYLLABUS

    A lawyer holding a license in another profession, or a degree from an accredited institution of higher education representing expertise beyond that held by the average lawyer may indicate the dual licensure or educational attainment for the purpose of indicating the lawyer's special qualifications or interests to potential clients in communications about the lawyer's services, including on letterhead and in firm name.

    A lawyer holding a license in another profession may practice both professions, provided client confidences are protected, public communications about each business are clear and do not create unjustified expectations about the results which might be achieved, there is no in-person or telephone solicitation of legal employment unless the person solicited is a current or former law client of the lawyer.

    A lawyer may refer law clients to the lawyer's nonlaw business, and may accept legal referrals from the nonlaw business, provided that the lawyer discloses the lawyer's financial interests in the nonlaw business, advises that the client is entitled to seek services from any other independent nonlaw service business and of the opportunity to obtain independent counsel before deciding whether to seek the lawyer's nonlaw services, and the lawyer exercises independent professional judgment regarding whether to represent the nonlaw client and what legal services the nonlaw client should have, without being influenced by whatever the nonlaw business has recommended.

    While every law firm must have lines of authority established that define which principals of the firm have particular oversight responsibilities, otherwise permissible advertising need not designate which lawyer or lawyers is/are "in charge."

    References: MRPC 5.1, 7.1, 7.5(a), 8.4(b); RI-135, RI-173, RI-190; Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 US 91 (1990).

TEXT

Three lawyers licensed to practice law in Michigan inquire concerning their designation of other professions on law firm letterhead. One lawyer holds a PhD in psychology, the second a degree in social psychology, and the third an allopathic medical college degree (MD). The PhD and MD intend to form a law firm to be known as the "Center for Behavioral Science and Law"; all wish to designate on their respective law firm letterheads their diplomate status and/or their status by title, e.g., Clinical Psychologist/Attorney at Law for the PhD, Psychiatrist/Attorney at Law for the MD, unspecified for the social psychologist.

An immediate distinction must be made. "Psychologist," "psychiatrist," and various forms of counselors are terms that imply that the person so designated is validly licensed by one of the state's health professions licensing boards. Statutes define "psychiatrist" as a physician with specified practice experience, and "physicians" require a license pursuant to MCL 333.1400(g)(i). A "psychologist" is defined as a person licensed under chapters 161 to 188 of the Public Health Code by MCL 333.1400(j). A "social psychologist" who purports to counsel individuals would require a license pursuant to MCL 333.18105 et seq.

As it would for these reasons be illegal for an otherwise unlicensed diplomate to use such titles, presumably the lawyers who make the inquiry are duly licensed in their respective disciplines, as otherwise their use of such designations would facially violate MRPC 8.4(b).

Two scenarios thus present themselves as possibilities on these facts: (1) a lawyer with dual licensure in another profession intends to actually practice law exclusively, but wishes to use the other license (or diplomate status without license) to suggest to potential clients a field both of interest and expertise, or (2) the lawyer wishes to practice in both disciplines simultaneously, from a single office. A third possibility, which would be a combination of (1) and (2), appears to raise no problems distinguishable from those separately involved in each initial business practice, and so need not be separately addressed.

In the first scenario, the lawyers simply propose to indicate on their stationery something about their educational and/or experiential background which might accurately suggest to potential clients with particular kinds of problems that these lawyers possess unique and valuable qualifications to assist them with their problems, e.g., a criminal defendant with a possible insanity or diminished capacity defense, or where evidence of battered spouse or child or rape trauma syndrome might be crucial, domestic relations, workers compensation mental disability claimants or their opponents. Since it appears the representations comply with MRPC 7.1, the proposed communications are permissible. See also, Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 US 91; 110 S Ct 2281; 110 L Ed 2d 83 (1990).

The second scenario, however, leads to the usual problems with ancillary services. There is always the danger, perhaps even more acute when the second profession also involves special trust and confidence and clients who may be particularly psychologically vulnerable, that the client will be disadvantaged in bringing two kinds of needs to one person with dual licensure. RI-135 and RI-190. All the prophylactic measures required by those two opinions would apply with at least equal force here. It should be noted that statutory and other law may govern the business relations conducted under the second license, e.g., confidentiality, MCL 333.18117, or disclosure obligations, MCL 722.623 (child abuse reporting); People v. Cavaiani, 172 Mich App 706 (1988).

The Committee is also asked whether, if such letterheads are in general permissible, the proposed name of the group may be used in advertising. MRPC 7.5(a) permits use of a trade name by a lawyer in private practice if the name 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 MRPC 7.1. So long as the proper prerequisites for use of an assumed name or registration of a corporate, limited liability company, or partnership name are fulfilled (assuring that there is thus no tradename infringement, for example), this subject would appear to be covered by RI-173, which holds that a firm name other than one representing some combination of one or more principals may be selected, as long as the name chosen is not misleading.

It is difficult to say what is implied by a name like "Center for Behavioral Science and Law." If such a firm name might reasonably be misunderstood as suggesting a non-profit research institution or government agency, it would violate MRPC 7.5(a). A definitive answer would seem to be possible only on the basis of empirical evidence, say a scientific sampling of a cross-section of the public. This Committee has been provided no such information, and is not equipped to ferret out such data on its own. Those who propose to form such a law firm will have to make their own determination, with reference to the controlling precepts of MRPC 7.1 and 7.5(a).

Finally, the Committee is asked whether it is necessary to designate the "lawyer in charge" in all advertising. Although it was previously the rule that the name of a lawyer had to appear in all advertising about the law firm, that is not the case under the current ethics rules. The Michigan Rules of Professional Conduct address only the responsibilities of partners and other supervisory lawyers, MRPC 5.1, but do not intimate that otherwise permissible advertising must inevitably specify who is in charge of a law firm. As among the lawyers in a firm, a pecking order must be established so that each may fulfill the obligations imposed by MRPC 5.1, but nothing in the rules appears to compel automatic disclosure of the chain of command as part and parcel of every public communication.

 
     

 

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