90-03: Communications Concerning Services; Firm Names and Letterheads

3/1990

Listing non-lawyer support personnel on lawyer's or firm's letterhead.

FACTS

The inquiring attorney requests that the committee reconsider its prior opinions which concluded that non-lawyer employees of a law firm may not ethically be listed on the firm's letterhead. The prior opinions were decided under DR 2-102(A) of the Code of Professional Responsibility as adopted in Arizona, which was replaced in 1985 in this state by the Rules of Professional Conduct.

QUESTION

Under the Rules of Professional Conduct, as adopted in Arizona, may a law firm ethically list non-lawyer support personnel on the firm's letterhead so long as the status of each non-lawyer is made clear?

ETHICAL RULES CITED

ER 7.1. Communications Concerning a Lawyer's Services

ER 7.5(a). Firm Names and Letterheads

OPINION

This committee addressed the propriety of listing non-lawyer personnel on lawyers' letterheads in our earlier Opinions Nos. 84-14, 82-3, 79-11, 74-37 and 232. We consistently held that, under the Arizona Code of Professional Responsibility, DR 2-102(A) prohibited listing non-lawyers on a law firm's letterhead. However, in view of the changes in the provisions governing attorneys' letterheads resulting from the Arizona Supreme Court's adoption of the Rules of Professional Conduct, and in light of the recent United States Supreme Court decisions defining the constitutional protection afforded non-fraudulent commercial speech, we believe it is appropriate to reevaluate the continuing validity of our prior opinions on this issue.

Unlike the Code of Professional Responsibility, the current Rules of Professional Conduct do not attempt to specify the information which may be listed on a firm's letterhead. Instead, the Rules of Professional Conduct prohibit "false or misleading" communications.

ER 7.5(a) provides in part:

A lawyer shall not use a firm name, letterhead, or other professional designation that violates ER 7.1. ***

ER 7.1 provides in part:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

*****

In addition, a state's ability to regulate the content of a law firm's letterhead is restricted by the First Amendment protections afforded to commercial speech. Commercial speech that is not false or deceptive may be restricted only when required by a substantial governmental interest, and only through means that directly advance that interest. Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 638, 105 S. Ct. 2265, 85 L. Ed. 2d 652 (1985). Furthermore, restrictions that are designed to prevent fraud and deception may be no broader than reasonably necessary to prevent the perceived evil. Shapero v. Kentucky Bar Association, ______ U.S. ______, 108 S. Ct. 1916, 1921, 100 L. Ed. 2d 475, 483 (1988).

Recently, the American Bar Association addressed the issue of listing non-lawyer personnel on lawyers' letterheads. In Informal Opinion 89-1527 (1989), the ABA's Standing Committee on Ethics and Professional Responsibility concluded that, under Model Rules 7.5 and 7.1 (which are identical to Arizona's Ethical Rules 7.5 and 7.1), listing non-lawyer personnel on a lawyer's or law firm's letterhead is not prohibited so long as the listing is not false or misleading. The Committee explained that, in order to avoid being misleading, the listing must make it clear that the support personnel who are listed are not lawyers.

In order to avoid being misleading, the listing must make it clear that the support personnel who are listed are not lawyers. The listing of support personnel, such as the law firm administrator or office manager, administrative assistants, paralegals or others, appropriately designated may furnish useful information to the public in determining whether to engage the firm and in learning the status of members of the support staff with whom they have contact. A law firm also may list non-lawyer personnel on business cards, written advertisements and the like, provided the designation is not likely to mislead those who see it into thinking that the non-lawyers who are listed are lawyers or exercise control over lawyers in the firm.

. . . .

. . . [C]larifying measures must be taken with respect to any title or other designation of non-lawyer personnel which is ambiguous and does not itself clearly disclose that the person holding the office is not a lawyer.

Id., pp. 1-2.

The ABA Committee's opinion is consistent with the Rules of Professional Conduct and the United States Supreme Court's decisions in Zauderer and Shapero. Therefore, we conclude that, in Arizona, non-lawyer personnel may be listed on lawyers' and law firms' letterheads so long as their non-lawyer status is made clear. To the extent that our prior opinions differ with this opinion, they are expressly overruled.

Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.