State Bar of Arizona Ethics Opinions
94-01: Professional Announcements; Judge Pro Tem
A lawyer announcement regarding serving as a judge pro tem should include some clarification regarding the extent of service, if there is minimal service. Such clarification might indicate the year of service or the number of panels served upon.
Certain Arizona courts have established programs utilizing the services of practicing lawyers as Judges Pro Tem. The courts' procedure is to have two lawyers serve on a panel with one regular judge of the court. The panel hears three civil cases in a single day and each lawyer writes one memorandum decision. Most lawyers serve on only a single panel although, over several years, some have served twice and perhaps even three times. Many of the lawyers who have served as Judges Pro Tem include information to that effect in announcements, advertisements, directories, and the like, most simply listing the fact that he or she has served as a Judge Pro Tem of an Arizona court. The court is concerned that such announcements may mislead people into believing that the lawyer has more judicial experience than is, in fact, the case, and seeks this committee's opinion on the ethical propriety of such a practice.
May a practicing lawyer who has served as a Judge Pro Tem on an Arizona court on a limited basis list that fact in announcements, advertisements, directories, etc., without more?
ETHICAL RULES INVOLVED
ER 7.1. Communications and Advertising Concerning a Lawyer's Services
(a) 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:
(1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
ER 7.1 governs all communications about a lawyer's services, including advertising permitted by ER 7.2. (Comment to ER 7.1) Therefore, it implicates statements made in announcements, advertisements and directories. See ABA/BNA Lawyers' Manual on Professional Conduct, pp. 81:3001, 81:3004 and 81:3008 (a lawyer's letterhead and business card are forms of public communication, and are thus subject to the general directives of ER 7.1 that they cannot contain material that is false and misleading).
There need be no citation for the proposition that a statement which is literally true may be misleading if not accompanied by additional facts that complete the story. According to Professors Hazard and Hodes, respected authors of the treatise, The Law of Lawyering, ". . . subsection (a) [of ER 7.1] requires a caveat or explanation when a statement would otherwise be misleading. Each statement must be judged on its facts to determine whether it would have that effect and how much explanation is necessary." § 7.1:201, at p. 861 (1991 Supplement).
Hazard and Hodes provide several examples of misleading statements that would probably violate ER 7.1(a)(1) without some explanation. The authors conclude that ". . . the truthful statement, ‘Our firm won its last five cases,' would be misleading and would create unjustified expectations about future cases, if the statement did not also reveal that the cases were all uncontested divorces. Such a statement would be held misleading by most disciplinary authorities, . . ." Id. at p. 860.
In addition, they believe that an advertisement placed in a local newspaper stating "admitted to practice before the United States Supreme Court" also probably violates ER 7.1(a). The authors note: "The statement, standing alone, would mislead most lay persons, who do not know that lawyers may be admitted to practice before the Supreme Court as a matter of course three years after their admission to the bar. The statement also implies that [the advertising lawyer] has actually litigated cases before the Court, and that this better qualifies him to handle the average client's case." Id. at § 7.1:202, at p. 861.
This committee previously issued opinions in which it found certain language used by lawyers in statements to be misleading even though they were arguably accurate in and of themselves. For example, in our Opinion No. 87-18 (August 28, 1987), we held that the use of the phrase "no recovery, no fee", or similar phrases, in a lawyer's advertising is misleading if not clarified by a reference to the client's obligation to pay costs even when there is no recovery (unless the client is indigent), since many laymen may not understand the distinction between "legal fees" and "costs", and might believe that retaining the lawyer would be entirely free of charge if there were no recovery.
In our Opinion No. 87-11 (June 17, 1987), the committee was faced with the question of whether a. lawyer, who was not certified as a specialist in any field recognized by the Arizona Board of Legal Specialization, could ethically use the phrase "Commercial Law and Litigation Specialty" on his letterhead. We held that the use of such a phrase was unethical. We were concerned that the use of the term "specialty" carried with it an implication that the lawyer was a designated specialist where there was not, in fact, any such designation, and would thus be misleading to the public.
It is not easy to establish a "bright line" test to determine when the simple listing of oneself as a Judge Pro Tem for a court might be misleading. That answer depends upon the circumstances. Clearly, the more service a lawyer has performed in that capacity, the less likely it would be that anyone would be misled by the statement. It probably would be fair to say that one who has only served on one appellate panel creates a false impression by listing himself or herself as a Judge Pro Tem on the court; however, one who has served on ten such panels probably could make the statement properly without any clarification. Where to draw the line in that continuum is a matter of individual judgment, governed by the principles discussed above.
Accordingly, we conclude that a lawyer's reference to himself or herself as a Judge Pro Tem of an Arizona court, without more, may be misleading depending upon the amount of service and experience of the lawyer in that capacity. If there is minimal service, some clarification (such as indicating the year of service or the number of panels served on) would be appropriate.
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.
©State Bar of Arizona 1994
1 In the proposed letter to clients, the firm indicates that firm #2 has ". . . represented thousands of homeowners who have suffered or will suffer from the polybutylene plumbing system. If this is hyperbole, a more accurate representation should be considered.
2 A proposed information statement has been considered by the Advertising Committee and will be soon be available. Note: Although the rules certainly apply to Arizona attorneys, our view would be that they also apply to out-of-state firms associating with Arizona firms.