RI-323
June 5, 2001
SYLLABUS
A law firm may not list a non-lawyer on its letterhead, identifying the non-lawyer with the job title "Estate Administrator," indicating that the non-lawyer holds a MBA degree and interposing a horizontal line and a space between the last-listed lawyer's name and the non-lawyer's name, without doing more to indicate that the non-lawyer is not a lawyer.
References: MRPC 7.1, 7.5; RI-34; ABA Op 89-1572l; NY OP 640; Bates v. State Bar of Arizona, 433 US 350 (1977).
TEXT
A law firm employs a non-lawyer who is responsible, subject to supervision by lawyers in the firm, for most aspects of estate administration including preparation of estate tax returns and related matters. This employee has extensive experience as a trust officer in a major bank, holds a MBA degree, has been designated an Enrolled Agent by the Internal Revenue Service and admitted to practice before the IRS, and has co-authored a major publication on estate administration. Within the firm is given the title, "Estate Administrator."
The firm is considering listing this non-lawyer on its letterhead as follows: all the lawyers in the firm would be listed first; after the name of the last-listed lawyer there would be a horizontal line and a space. Under the line would appear the name of the non-lawyer followed by a comma and the letters "MBA"; and the title "Estate Administrator" would appear under the non-lawyer's name. The inquirer inquires as to whether such a letterhead would violate MRPC 7.5.
MRPC 7.5(a) forbids the use by a lawyer of a letterhead that violates MRPC 7.1 that states:
"A lawyer may, on the lawyer's own behalf, on 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 substantiated."
This rule is fashioned in a manner that does not facilitate interpretation. Read in light of the maxim, "What is not forbidden is permitted," the first sentence of the rule is uninformative. It simply describes some (but not necessarily all) communications that are permitted if they are not forbidden by the second sentence. The first sentence does not logically imply that a communication not described in that sentence is prohibited. Such a rigorously logical reading of Rule 7.1 leads to the conclusion that the first sentence is superfluous because it tells us nothing that the second sentence would not tell us standing alone. For this reason the rigorously logical reading must be rejected or at least modified: a statement of positive law, whether a statute or a rule, should not be construed so as to render it partially or completely nugatory. World Book Inc v. Revenue Division, 459 Mich 404, 417 (1999), Bradley v. Saranac Board of Education, 455 Mich 285, 299 (1997).
The model rule is perhaps more elegant than the Michigan rule, since it avoids the logical and interpretive difficulties discussed above. MRPC 7.1 contains no permissive statement like the first sentence of the Michigan rule. Rather, the first sentence of the model rule is a general prohibition of false or misleading communications about a lawyer or the lawyer's services, and the second sentence defines "false or misleading" by listing the same three categories as the second sentence of the Michigan rule.
There is a reason for Michigan's adoption of a version of Rule 7.1 that includes a positive, albeit qualified statement of what a lawyer may do. This Committee identified that reason in RI-34: "Because of this strong statement [the first sentence of Rule 7.1], there are few constraints on the exercise of First Amendment rights with regard to communications concerning a lawyer's services." Michigan sacrificed the simplicity and logic of the model rule to emphasize its enthusiastic embrace of the affirmation of lawyers' constitutional right to freedom of expression found in Bates v. State of Arizona, 433 US 350 (1977), and its progeny. It remains true that we must look to the second sentence of Rule 7.1 to find its prescriptive content, but the first sentence serves as an exhortation to give the prohibitions in the second sentence a narrow reading.
Looking to the second sentence of Rule 7.1, it is clear that the letterhead described by the inquiring lawyer does not violate part (b) or part (c); it includes nothing that can reasonably be expected to give rise to any expectation of results, not does it compare the services of lawyers. It does not run afoul of the first clause of part (a) because it contains no explicit misrepresentation of fact. However, it is not in compliance with the second clause of part (a) because it omits the fact that the estate administrator is not a lawyer, and the letterhead, taken as a whole, is therefore misleading.
This conclusion is compelled by a careful reading of RI-34 and supported by ABA Informal Opinion 89-1572 and NY Op 640 (1992). RI-34 holds that a firm letterhead that includes the name and job title of a legal assistant does not violate Rule 7.1 provided the job title clearly indicates that the legal assistant is not a lawyer and the letterhead is laid out in a way that avoids confusion. Several examples of job titles that clearly indicate that an employee is not a lawyer are provided in the opinion. They are "legal assistant," "clerk," "paralegal," "office administrator," "investigator," and "business manager." One would be surprised to find a lawyer working as a legal assistant and shocked to find a legal assistant working as a lawyer.
ABA Informal Opinion 89-1572 deals with the title for a position with functions that are not so clearly distinct from those of a lawyer, namely, "executive director." One would be no more be surprised to find a lawyer serving as the "executive director" of a law firm than to find a layperson holding that position. The title therefore fails to put the public on notice that its holder is not a lawyer. If a non-lawyer is listed on firm stationary and identified with the title, the firm "must make it clear on the letterhead . . . that the person is either a non-lawyer or is responsible only for administration of the law office and is not responsible for the professional practice." "Similar clarifying measures must be taken with respect to any title or other designation on non-lawyer personnel that is ambiguous and does not itself clearly disclose that the person holding the office is not a lawyer." Id. NY Op 640 (1992) provides further examples of job titles that do not by themselves make it clear that the employees holding the titles are not lawyers: "Paralegal Coordinator," "Legal Associate," "Public Benefits Specialist," "Legal Advocate," "Family Law Advocate," "Housing Law Advocate," "Disability Benefits Advocate," and "Public Rights Advocate."
The title "Estate Administrator" similarly fails clearly to identify its holder as a non-lawyer. The title is not in common use as a term designating an employee who is not a lawyer. As a descriptive title, it denotes a person who administers estate(s); and it is not unusual for a lawyer to administer an estate. The danger of misunderstanding is exacerbated in Michigan by the existence of the offices of State Public Administrator and County Public Administrator. These officers' primary function is to administer decedents' estates. The State Public Administrator is necessarily a lawyer because the office can be held only by an assistant attorney general. MCL 720.201. In a telephone conversation with the State Public Administrator, it was verified that the overwhelming majority of County Public Administrators are also lawyers. A person who has some knowledge of the functions of Public Administrators in Michigan could easily assume that a person identified as "Estate Administrator" on law firm letterhead is a lawyer.
The letters MBA following the estate administrator's name also fail to give notice that this individual is not a lawyer, even if we assume that everyone reading the letterhead would realize that the letters indicate that the person holds a specific academic degree. There are lawyers who have earned MBA degrees.
The danger of confusion is not overcome by the use of a horizontal line and a space under the name of the last listed lawyer and above the name of the estate administrator. A similar line and space might be used on some firms' letterhead to separate partners or shareholders from associates.
Even giving a narrow reading to the prohibition of a letterhead or other statement that omits a fact necessary to make the statement considered as a whole not materially misleading, the suggested letterhead fails adequately to inform a reader that the estate administrator is not a lawyer.