Law firm may indicate that attorney becoming "of counsel" is a retired Judge.
Attorney X, a retired judge of the Superior Court, has become "of counsel” to Law Firm Y.
May Law Firm Y's letterhead indicate that Attorney X is “Judge of the Superior Court, Retired?”
ETHICAL RULES INVOLVED
ER 7.1. Communications Concerning a Lawyer's Services.
ER 7.5. Firm Names and Letterheads.
Under the Code of Professional Responsibility, which governed Arizona attorneys' ethical obligations until February 1, 1985, Attorney X would plainly have been prohibited from indicating his status as a retired judge of the Superior Court on the firm letterhead. Former DR 2-102(A)(4) provided that only the following sort of letterhead was permissible:
“A letterhead of a lawyer identifying him by name and as a lawyer and giving his addresses, telephone numbers, the name of his law firm and any information permitted under DR 2-105. The letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated ‘Of Counsel' on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as 'General Counsel' or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.”
DR 2-105 simply provided that lawyers specializing or limiting their practices could so indicate in various forms of communications to clients. Since information about the lawyer’s former status as a judge was not included within the matters listed in either DR 2-102(A ) (4 ) or DR 2-105, it was not ethically permissible to include such information on a letterhead.
However, since February 1, 1985, the issue is governed by ER 7.5 of the Rules of Professional Conduct. ER 7.5(a) provides that
"A lawyer shall not use a firm name, letterhead, or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice."
ER 7.1 provides as follows:
“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;
(b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or
(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated."
Of the three proscriptions in ER 7.1, only the one in subsection (b) would appear to have any application to the case at hand. The communication at issue, i.e., that X is a retired Superior Court judge, is plainly true, and does not compare his services to those of others. Thus, unless the communication can be said to "create an unjustified expectation about results the lawyer can achieve," it does not seem to fall within the proscription of ER 7.1.
The comment to ER 7.1 explicitly discusses the sort of information falling within the prohibition of subsection (b):
“The prohibition in paragraph (b) of statements that may create 'unjustified expectations' would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances."
While the comment to ER 7.1 does not purport to be an exclusive listing of information that might fall afoul of the prohibition of paragraph (b), it plainly describes a communication far different from the one at hand. X simply wishes to list on the firm's letterhead a significant fact concerning his prior professional experience. While it is possible that clients, or the public at large, may unjustifiably assume that a former judge of the Superior Court has undue influence with the current members of that bench, we can hardly conclude that this possibility, taken alone, turns the letterhead into a "false and misleading" communication within the purview of ER 7.1. Indeed, since ER 7.2 would plainly seem to allow attorneys in general to engage in truthful advertising concerning their professional qualifications and experience, we would be hard-pressed to conclude that judicial experience is somehow so special in its nature as to constitute a subject forbidden from discussion.
In short, we conclude that the information concerning X's experience, without more, does not constitute a "false or misleading communication" within the prohibition of ER 7.1, and therefore may be included on the letterhead under ER 7.5.
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 proceeding. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rules change, a different conclusion may be appropriate.
© State Bar of Arizona 1987
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