Attorney who is also a real estate broker communicating this fact on his legal letterhead to solicit real estate business.
The inquirer is both an Arizona attorney and a licensed Arizona real estate broker. The attorney asks for guidance regarding solicitation of business in this dual-career capacity.
1. May an attorney/real estate broker solicit real estate business on his legal letterhead, when the letter explicitly states that the attorney will be acting in such business only in the capacity of a real estate broker, and not as an attorney?
2. If not, may the attorney/real estate broker solicit such real estate business using his real estate broker's letterhead with no indication, either in the letterhead or in the body of the letter, that he is also an attorney?
3. Is it ethically permissible for the attorney/real estate broker to mention the fact that he is also an attorney, when soliciting real estate business on his real estate broker's letterhead?
ETHICAL RULES INVOLVED
ER 7.1. Communications Concerning a Lawyer's Services
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
ER 7.3. Direct Contact with Prospective Clients
A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship... when a motive for the lawyer’s doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars istributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.
ER 7.5. Firm Names and Letterheads
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. ...
Relevant prior opinions of this committee and their digests - each of which was decided under the then-applicable Code of Professional Responsibility - include:
Opinion No. 77-16 (June 20, 1977) - No ethical impropriety in attorney obtaining a real estate salesman's or broker’s license, establishing and maintaining a real estate office separate from and independent of his law office, and thereafter soliciting real estate listings and advertising listed properties out of such real estate office, provided attorney observes DR 2-102(E) and other provisions of Code.
Opinion No. 78-35 (October 18, 1978) - Ethically impermissible for attorney, working as part-time sales associate of real estate broker, to show "Attorney at Law" or RJ.D" alongside his name on real estate broker's business cards.
Opinion No. 80-16 (June 5, 1980) - Attorney-CPA may permissibly show both capacities in his advertisements, which may not, however, properly include references to both accounting services and legal services offered by him.
Turning to the questions raised by the inquiring attorney here:
Question 1 - May an attorney/real estate broker solicit real estate business using his legal letterhead?
In our Opinion No. 80-16, we permitted an attorney/accountant to advertise that the attorney was also a certified public accountant.
In our Opinion No. 77-16, we concluded that an attorney/real estate broker could solicit real estate listings out of his real estate office, which was separate and independent of his law office. We stated that such conduct did not present problems of ethical impropriety, so long as the attorney fully complied with the provisions of the Code of Professional Responsibility which was then in effect. However, we concluded in our later Opinion No. 78-35 that a dual-career attorney was prohibited from showing "Attorney at Law" on business cards relating to his non-legal profession. This prohibition was based upon former Disciplinary Rule 2-102(E), which prohibited a dual-career attorney from indicating this fact on any letterhead, office sign, professional card or publication. In February, 1980, the American Bar Association rescinded DR 2-102(E).
The new Rules of Professional Conduct adopted by the Supreme Court of Arizona effective February 1, 1985, do not prohibit an attorney from listing other professional fields in which he or she is qualified on a letterhead or by other means of communication. To the extent that such information is truthful, it is helpful to the consumer.
Thus, under the new Ethical Rules, an attorney may show on his or her legal letterhead that the attorney also possesses a real estate broker's license. That portion of our Opinion No. 78-35 which held that an attorney may not show, on business cards or other forms of communication, that he or she holds a real estate sales person's license, is overruled.
Prior to the United States Supreme Court decision in Shapero v. Kentucky Bar Association, ____ U.S.____, 108 S. Ct. 1916, ____ L. Ed. 2d____, 56 L.W. 4532 ( No. 87-16) (June 14, 1988), solicitation of potential clients through the mail was governed by ER 7.3, which permitted the attorney to send out general mailings, but not specific, targeted mailings to such potential clients. The Shapero decision ruled that the Kentucky Bar Association could not prohibit targeted mailings, so long as the letters did not include false or misleading information in violation of ER 7.1. The Court did indicate that bar associations could monitor and police such targeted mailings to ensure their accuracy.
Therefore, it is ethically permissible for the inquiring attorney to include on his legal letterhead a truthful statement that he also possesses a real estate broker's license. In addition, the attorney/real estate broker may use such letterhead in a mailed solicitation, so long as it complies fully with ER 7.1. The inquiring attorney should also be mindful of the fact that additional rules may be promulgated by the Supreme Court of Arizona in an effort to monitor such mailings.
Question 2 - May the attorney/real estate broker solicit real estate business on his real estate stationery without reference to the fact that he is also an attorney?
So long as the attorney/real estate broker makes no mention of the fact that he is also an attorney, either on the printed real estate broker's letterhead or in the body of the solicitation letter, and the business is operated separately and independently of his law office, he may advertise just as any other real estate broker may do. The rationale for this view is that a real estate broker should not be prohibited from proper, legal solicitation of real estate clients simply because he is also an attorney, provided that this fact is in no way communicated to the prospective real estate customer.
Therefore, we conclude that any solicitation of real estate business by the attorney/real estate broker, which makes no mention of the fact that the broker is also an attorney, is not affected by the Rules of Professional Conduct.
Question 3 - May the attorney/real estate broker mention the fact that he is also an attorney in the body of a solicitation letter sent on his non-legal, real estate broker's letterhead?
As noted above, in the answer to Question 1, once the fact is made known that the solicitor is also an attorney, the requirements of the Ethical Rules, specifically ER 7.1, apply, just as if the letter had been sent on the attorney's legal letterhead.
Therefore, if any mention is made, anywhere in the solicitation letter, of the fact that the solicitor is an attorney, or if real estate customers are asked to respond to an address or telephone number which is calculated to make this fact known to them, the prohibitions of ER 7.1, and all of the other Ethical Rules, apply to the attorney/real estate broker's conduct, just as if the letter were sent on the attorney's legal letterhead.
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 1988
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