March 20, 1997
A law firm may list the name of a temporary lawyer on the law firm letterhead when the temporary lawyer is not an employee of the law firm, as long as the temporary lawyer has a direct and continuing relationship with the law firm and the temporary lawyer's capacity is plainly disclosed on the letterhead, i.e., "Temporary Lawyer."
References: MRPC 7.1, 7.5(a) and (d); C-230; RI-45, RI-59, RI-130, RI-200; RI-246; Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985).
Through a placement agency, the inquirer has obtained the services of a temporary lawyer. The placement agency found and hired the temporary lawyer, then contracted with the inquirer for the temporary lawyer's services at an hourly rate.
Although the temporary lawyer is an employee of the placement agency and not the law firm, the inquirer considers the temporary lawyer to be an associate of the law firm, and proposes to list the temporary lawyer's name on the firm letterhead as an associate. In support of the position that the temporary lawyer is an associate, the inquirer points out that the firm has provided the temporary lawyer with office space, case assignments, malpractice insurance and access to client files.
Advice is sought on whether the temporary lawyer can be listed on the firm letterhead as an associate.
The Rules relevant to this inquiry are MRPC 7.1 and 7.5(a) and (d).
MRPC 7.1 states in part:
"A lawyer may, on the lawyer's own behalf, on behalf of the 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 . . . ."
MRPC 7.5 (a) and (d) state:
"(a) A lawyer shall not use a firm name, letterhead or other professional designation that violated 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.
". . . .
"(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."
Several opinions have addressed whether lawyers who are not in the same firm may share a firm name, letterhead or other joint communication about services. The Committee opined in C-230, that lawyers who belonged to separate corporations but worked together from time to time, were prohibited from using joint letterhead because of the potential to be misleading to the average citizen. RI-45 states in part: "The rules require that lawyers be honest and clear in the representations which 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." See also, RI-59, RI-130, RI-200.
RI-246 addressed whether information on a lawyer's letterhead may be misleading or fraudulent. The Committee opined that the use of certain terminology on letterhead, while it might not be considered false, if it has the potential to be misleading or deceptive, it is prohibited. In reaching this conclusion, the Committee relied on the First Amendment considerations outlined in Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985).
It would not be misleading or deceptive to list the temporary lawyer on the law firm's letterhead as long as the temporary lawyer maintains a direct and continuing relationship with the law firm and that the temporary lawyer's capacity be plainly disclosed on the letterhead.