“You only have one chance to make a first impression.” A lawyer’s letterhead is a first impression to many, and a lawyer quite reasonably may want to take the extra time to craft a letterhead that communicates not only the quality of services offered, but also the confidence the letter’s recipient may place in the law firm. Because a lawyer’s letterhead is a communication concerning the lawyer’s services, the letterhead must comply with the advertising rules set out in the Rules of Professional Conduct. Previously, Rule 7.5 was specifically dedicated to law firm names and letterheads. The most basic principle pertaining to letterhead remains that it must comply with Rule 7.1—law firm letterhead may not contain material that is false or misleading. For that reason, the new amendments to the Rules of Professional Conduct eliminate Rule 7.5 as a standalone rule and include its content in the comments to Rule 7.1.
A surprising number of ethics opinions have been written interpreting the prohibition on misleading material in law firm letterhead. Most of these opinions consider “who” may be listed on law firm letterhead. The Rules of Professional Conduct do not require that all members of a law firm be listed on the letterhead. The ethical concerns are generally related to individuals who may not be listed or may only be listed with qualifications.
Nonlawyer Employees
The Rules of Professional Conduct do not prohibit the listing of nonlawyers on law firm letterhead so long as they are identified as nonlawyers (or “muggles,” for all of our Harry Potter fans out there). As stated in RPC 126, it is “necessary that any communication of a lawyer or law firm be presented in a manner which is not false, deceptive, or misleading....To ensure that the public is not led to believe that a nonlawyer is eligible to practice law, the nonlawyer’s limited capacity should be clearly set forth on the letterhead.” Therefore, the following letterhead listings are appropriate: Joe Smith (Paralegal); Jane Doe (Law Clerk); Mary Brown (Legal Assistant). Disbarred lawyers who have subsequently been hired by a law firm may be listed on law firm letterhead with a similar designation. RPC 126. A nonlawyer employee’s title or special qualifications may be denoted if they are not misleading and if there is a clear indication of nonlawyer status. For example, a firm’s office manager, information technology supervisor, or human resources manager may be listed as such on firm letterhead.
Recent Law School Graduates
Law firms often hire law school graduates before they have taken the bar exam or before they have received their bar exam results. Law school graduates awaiting bar exam results may be listed on firm letterhead so long as the public is not misled about whether they are entitled to practice law. Law firms should include appropriate parentheticals such as: (Eligible for July 2021 NC bar exam); (Sitting for July 2021 NC bar exam); (July 2021 NC bar exam results pending). See Rule 7.1.
Lawyers Previously Employed by the Law Firm
Whether a lawyer previously employed by a law firm may continue to be listed on the firm letterhead will generally depend on whether the lawyer died, retired, moved to another firm, became a public service lawyer, or went into another profession entirely. A law firm may continue to list the names of deceased and retired law firm members on its letterhead. “Subsequent communications listing the former member’s name on law firm letterhead, however, should clarify that the former member is deceased or retired so as not to mislead the public.” 2006 FEO 20.
The name of a lawyer who has left a law firm to practice law with another firm cannot be listed on firm letterhead because it would be misleading in violation of Rule 7.1. See 2006 FEO 20. Similarly, the name of a lawyer holding a public office may not be listed on firm letterhead during any substantial period in which the lawyer is not actively and regularly practicing with the firm. Therefore, the name of a lawyer who has left a firm to start a judgeship may not be listed on the law firm’s letterhead. Another issue arises if the judge returns to work at the law firm after the termination of the judgeship. What is the proper way to list a former judicial official on law firm letterhead? Although there is, at present, no North Carolina opinion on point, according to ABA Formal Ethics Opinion 95-391, a former judge who returns to the practice of law may not continue to use the title judge in any communications related to the practice of law. The opinion provides:
We believe that the use of the title “Judge” in legal communications and pleadings, as well as on a law office nameplate or letterhead, is misleading insofar as it is likely to create an unjustified expectation about the results a lawyer can achieve and to exaggerate the influence the lawyer may be able to wield. In fact, there appears to be no reason for such use of the title other than to create such an expectation or to gain an unfair advantage over an opponent. Moreover, the use of judicial honorifics to refer to a lawyer may in fact give his client an unfair advantage over his opponents, particularly in the courtroom before a jury.
Id.
The prohibition on the use of the title applies whether the title is modified by “former” or “retired.” However, a lawyer who previously served in a judgeship may make accurate statements about his prior judicial experience in biographical information. See Arizona Advisory Opinion 2016-2; Florida Bar Standing Committee on Advertising A-09-1; Maryland Advisory Opinion Request 2003-26; South Carolina Advisory Opinion 21-1997.
Lawyers Not Licensed in North Carolina
Generally, only active members of the North Carolina State Bar may practice law in North Carolina. Accordingly, lawyers licensed in other jurisdictions, but not North Carolina, are generally prohibited from practicing law in North Carolina. See N.C. Gen. Stat. § 84-2.1 and § 84-4. However, North Carolina law firms may employ lawyers who are licensed to practice in a jurisdiction other than North Carolina when the lawyer’s practice is permitted by an exception set out in Rule 5.5 (for example, federal practice). A lawyer who is licensed in a jurisdiction other than North Carolina can have his or her name included in the firm letterhead, provided all communications by such lawyer indicate the jurisdiction in which the lawyer is licensed as well as the fact that the lawyer is not licensed in North Carolina. See Rule 7.1, cmt. [6]. For example, if John Smith is licensed only in South Carolina, his name may appear on the letterhead of a North Carolina law firm as follows: John Smith* (*Licensed in SC, not licensed in NC) or (*Licensed only in SC).
Of Counsel
Lawyers who act or serve “of counsel” to a law firm may be included on law firm letterhead so long as the lawyer is licensed in North Carolina and the professional relationship is close, regular, and personal. See RPC 34; RPC 85. As stated in RPC 85:
[R]elationships that involve only one case or matter, that involve only occasional collaborative efforts among otherwise unrelated lawyers or firms, or that primarily involve only the forwarding of legal business would not satisfy the requirements for the use of the “of counsel” appellation. The critical consideration is the nature of the relationship and the adherence to the rules applicable to conflicts of interest and confidential information. In no event may “of counsel” be used unless the usage is consistent with the rules pertaining to false and misleading communications...or firm names and letterheads....
A law firm may have an out-of-state lawyer as “of counsel” if the requirements for lawyers not licensed in North Carolina set out above are met and the professional relationship meets the requirements of an “of counsel” relationship. Again, the law firm must clearly indicate on all communications the jurisdictions in which the out-of-state of counsel lawyer is licensed and indicate that the lawyer is not licensed in North Carolina.
Inactive, Suspended, or Disbarred Lawyers
Lawyers without an active law license may not be identified in letterhead as practicing lawyers. This prohibition applies to any lawyer whose license is inactive with the State Bar. Inactive statuses include voluntary inactive, disability inactive, administrative suspension, disciplinary suspension, and disbarment. Within a reasonable period of time, the name of a lawyer whose license is inactive must be removed from the firm letterhead or supplemented with additional information to clarify the inactive lawyer’s limited capabilities. RPC 126, 2018 FEO 3.
Partner
Referring to a lawyer as a “partner” on law firm letterhead “cannot be a sham.” 2015 FEO 9. To avoid misrepresentation, “a law firm may designate a lawyer as a partner, regardless of whether the lawyer satisfies the legal definition of that term, if the lawyer was promoted to the position by formal action or vote of firm management or pursuant to the firm’s governing documents. Further, to prevent the public from being misled as to the lawyer’s achievements, the promotion must be based upon criteria that indicates that the lawyer is worthy of the promotion.” Id.
Specialist
Lawyers may not include the designation “specialist” on law firm letterhead (or any other communication or advertising material) unless (1) the lawyer is certified as a specialist in the field of practice by: (a) the North Carolina State Bar; (b) an organization that is accredited by the North Carolina State Bar; or (c) an organization that is accredited by the American Bar Association under procedures and criteria endorsed by the North Carolina State Bar; and (2) the name of the certifying organization is clearly identified in the communication. Rule 7.2(c).
Other Professions
In general, a lawyer may state on letterhead that the lawyer is also qualified in a different professional field and may list any earned degree designation that is not false or misleading. CPR 307 (lawyer who is also a real estate broker may so indicate on his letterhead); 2000 FEO 9 (lawyer’s business cards may state that he is also CPA).
Firm Location
Other than the individuals listed on the firm’s letterhead, another area of possible misrepresentation pertains to the listed address or telephone number. Lawyer advertisements must include the name and contact information of at least one lawyer or law firm responsible for its content. Rule 7.2(d). Lawyers generally may not use addresses of locations where they do not have a physical office. “It is a misleading communication for a law firm to infer that it has an office, or a lawyer located in a community when, in fact, there is no law office or lawyer for the firm present in the community.” RPC 217. In RPC 217, the Ethics Committee concluded that listing what appears to be a local telephone number in an advertisement in a particular community, without including an explanation that the number is not a local telephone number and that there is no law office in that community, is misleading as to the actual location of the law firm.
Similarly, in 2012 FEO 6, the Ethics Committee concluded that it would be misleading for a law firm to list a leased time-shared office address on letterhead or in advertising to infer that the law firm has an office or a lawyer located in a community when the law firm’s only connection with the community is the lease arrangement that allows a lawyer to use meeting rooms in that community on an “as needed” basis. The opinion provides, however, that it is not misleading for a law firm to list a time-shared leased office address on letterhead or in advertising so long as the communication contains an explanation that accurately reflects the law firm’s presence at the address (i.e., “by appointment only”).
Use of Law Firm Letterhead
Finally, it goes without saying (but we said it in 2011 FEO 9) that a lawyer may not allow a person who is not employed by or affiliated with the lawyer’s firm to use firm letterhead. “If a person who is not employed or formally affiliated with the firm sends a letter on firm letterhead, it creates the false impression that the person has the authority to act on behalf of the law firm and is being supervised by a firm lawyer.” 2011 FEO 9. If a lawyer learns that someone who is not employed or affiliated with the firm is using firm letterhead to write to third parties, the lawyer must take steps to stop the misuse of the letterhead.
First impressions are often the most lasting ones. As a first impression, lawyers will necessarily want their letterhead to be impressive and informative. Given the importance of letterhead to a law firm’s reputation and the many nuances of the prohibition in Rule 7.1 against the use of false or misleading information, take the extra time to craft a letterhead that justifiably extols the virtues of (and people affiliated with) your firm without inadvertently violating the Rules of Professional Conduct. And remember, these Rules of Professional Conduct are not limited to letterhead. They apply to all public communications, including websites and social media.