This column provides information on lawyer and judicial regulatory issues which have been the subject of recent inquiry.
Rule 7.5 of the Michigan Rules of Professional Conduct (MRPC) provides:
"Firm Names and Letterheads.
(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.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding a public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."
MRPC 7.1, referred to in MRPC 7.5(a), prohibits a lawyer from making any public communication that is "false, fraudulent, misleading or deceptive."
There have been numerous ethics opinions issued on letterhead-related questions. Some of the most common questions (and answers) on lawyer letterhead issues include:
- May lawyers who are not in the same firm, such as office-sharers, use joint letterhead? No. However, lawyers who are not in the same law firm may use joint advertising, as long as the advertising clearly delineates the relationship between the firms and does not infer that the independent lawyers operate as one firm. Further, communications about services available from a number of independent law firms may not describe the relationship between the firms to be an "affiliation" without further clarifying the meaning of the term. RI-200. Similar opinions have been published under the former Michigan Code of Professional Responsibility. In C-230, two associated lawyers wished to use joint letterhead, stating "Lawyer A and Lawyer B, an association of professional corporations." In that opinion, the committee opined that the phrase "an association of professional corporations" compounded the confusion concerning the status of the two firms, rather than clarifying the status. The committee found that this listing would infer that there existed some sort of corporate structure or partnership arrangement between Lawyer A and Lawyer B, and therefore found this listing to be misleading and unethical.
- May a law firm include the names and titles of nonlawyers on firm letterhead? A law firm may note on its letterhead certain nonlawyer job titles and who performs those services provided that the information is not misleading, false, fraudulent or deceptive about the fact that the nonlawyers are performing nonlawyer functions.
Also, a law firm may provide business cards for nonlawyer employees which indicate the nonlawyer's job title, if the information is not false, fraudulent, deceptive or misleading. RI-34. A law firm may include on firm letterhead a nonlawyer employee with the designation "appraiser," as long as the communication indicates clearly that the employee is a nonlawyer. RI-105.
- May a firm continue to use the name of a deceased partner or shareholder in the firm name after the death of the partner or shareholder? It is permissible to use the name of a deceased partner in a firm name where there is a continuing line of succession from the firm of which the deceased lawyer was a partner. RI-45.
- May a firm retain the name of a retired shareholder in the firm's name? When a named shareholder of a professional corporation retires from the active practice of law and is no longer a shareholder in the firm, but remains associated with the firm in "of counsel" status, the firm may retain the retired shareholder's name in the firm name where the firm name has been long-established and well-recognized and communications about the lawyer's status clearly indicate that the lawyer is retired. RI-90. However, when a lawyer who is a shareholder in a professional corporation ceases to be a shareholder, but remains with the firm as an employee, the professional corporation may not ethically continue to use the former shareholder's name in the firm name. RI-59. It is also misleading and impermissible to use the name of a lawyer in the firm name where the lawyer is no longer associated with the firm. RI-45.
- May a law firm continue to list a semi-retired member of the firm as "of counsel" on letterhead? A lawyer or law firm may be designated as "of counsel" to one or more lawyers or law firms, whether located in Michigan or out of state, provided that the relationship is close, personal and regular with frequent and continuing contact, and not that of a partner, shareholder, associate, occasional consultant, mere office-sharer, or forwarder or receiver of legal business. RI-102.
- May a law firm list the name of a "temporary" lawyer on firm letterhead? 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." RI-290.
- If a law firm is incorporated as a limited liability company, how must the firm be designated on the letterhead? The firm name must contain the words "Professional Limited Liability Company" or the abbreviation "P.L.L.C." or "PLC" R-17.
- How may an administrative hearing officer designate himself/herself on the private practice law office letterhead? A lawyer who serves as a full-time administrative hearing officer is not per se prohibited by ethics rules from engaging in the private practice of law. However, the lawyer who conducts a private law practice while serving as an administrative hearing officer may not list the public position on the law firm letterhead. RI-110.
- May a firm "franchise" a trade name for use by other law firms? A lawyer may not offer or make an agreement to franchise a trade name under which a number of lawyers who are not in fact in a partnership or professional corporation relationship with the franchisor hold themselves out as practicing under one firm name. RI-130.
Ethics opinion RI-45 contains a well-reasoned summary of issues surrounding letterhead questions. That opinion states:
"In sum, 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."
If this guidance is accepted by lawyers making decisions concerning firm letterhead, many ethics dilemmas may be avoided.