RI-362
NOTE: MRPC 7.1 was amended effective January 1, 2019, to include the following language: “Except as otherwise provided in this rule, a lawyer who is a retired or former justice, judge, referee, or magistrate may use the title (“justice,” “judge,” “referee,” or “magistrate”) only when the title is preceded by the word “retired” or “former.” A justice, judge, referee, or magistrate who is removed from office or terminated on grounds of misconduct is prohibited from using the title.”
May 3, 2013
SYLLABUS
A lawyer who is a former judge ethically may make a truthful statement referring to a past judicial position, including years the position was held, in communications subject to MRPC 7.1. Any language beyond identification of the position held and the years during which the position was held must also comply with all of the requirements of MRPC 7.1.
References: MRPC 7.1; RI-327.
TEXT
A lawyer asks whether he may publish his status as a retired district judge of thirty years in print and video advertising for the private law firm for which he now works.
Michigan Rule of Professional Conduct (MRPC) 7.1 acknowledges a lawyer's ability to "use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive" and proscribes communications that:
- contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not misleading;
- [are] . . . 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
- compare the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.
While the lawyer's statement about his former experience is true and does not compare the lawyer's services to another lawyer's services, a question remains as to whether identifying prior judicial experience is "likely to create an unjustified expectation about results the lawyer can achieve" or "state[s] or impl[ies] that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law."
The Committee believes that a truthful statement of the lawyer's prior judicial experience does not in and of itself create an unjustified expectation about the results the lawyer can achieve; nor does it state or imply that the lawyer can achieve results by means that violate the MRPC or other law.
In reaching this conclusion, the Committee distinguishes this inquiry from the question answered in Informal Ethics Opinion RI-327 (Sep. 21, 2001), which discussed a former judge's desire to continue to use the title "Honorable" before his name both in the name of his law firm and on firm letterhead. The Committee concluded that usage of the term "Honorable" could be misleading1 and prompt an individual to believe the former judge could achieve results as a former judge that another lawyer could not, thereby implicating MRPC 7.1(b). By contrast, a statement that expresses what is indisputably a credential of the lawyer—such as, District Judge for __th District, 1980-2010—is not misleading.2
Accordingly, a lawyer ethically may make a truthful statement referring to a past judicial position, including years the position was held, in communications subject to MRPC 7.1. Any language beyond identification of the position held and the years during which the position was held must also comply with all of the requirements of MRPC 7.1.
1 The Committee noted that a point of confusion might be a lack of understanding that a retired judge in private practice is prohibited from sitting on assignment and, conversely, a retired judge who sits on assignment is prohibited from engaging in the practice of law. Were individuals in both circumstances to use the title "Honorable," an individual could easily be confused about whether a retired judge who practices law nonetheless retains some powers or abilities as a judge.
2 Any statements in Informal Ethics Opinion CI-850 (May 21, 1983), decided under the former Michigan Code of Professional Responsibility, contrary to this Opinion are invalid.