RI-105

November 14, 1991

SYLLABUS

A law firm may include on firm letterhead, and issue firm business cards to, a nonlawyer employee with the designation "appraiser," as long as the communication indicates clearly that the employee is a nonlawyer.

A law firm announcement may include the previous employment of a new nonlawyer employee of the law firm, as long as the communication indicates clearly that the employee is a nonlawyer.

A law firm sign may not include the name of a nonlawyer employee, unless the relationship of the employee to the firm and the employee's nonlawyer status is clear.

A law firm may not allow a nonlawyer employee and the employee's services to be in a telephone directory listing separate from the law firm.

A law firm may not advertise in local newspapers and trade publications ancillary services it is offering.

References: MRPC 1.6, 5.4(b) and (d), 7.1, 7.5(d); RI-34; Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985). CI-850 is distinguished.

TEXT

A firm employing a former nonlawyer judge of the Michigan Tax Tribunal as a consultant and appraiser on real estate tax appeal matters inquires:

1. May the nonlawyer's name be placed on the firm's letterhead where it appears beneath a list of lawyer partners and associates, is set off beneath a rule, and (a) designates the employee as an appraiser, or alternatively (b) designates the employee as a retired judge of the Michigan Tax Tribunal and (not a licensed lawyer)?
2. May announcements be circulated indicating the firm is employing a former chief judge of the Michigan Tax Tribunal as an appraiser?
3. May the firm procure a telephone book listing for the employee, indicating the employee is an appraiser employed by the firm and located at the firm's office?
4. May the firm place the employee's name on the firm door?
5. May the firm place announcements in local newspapers and trade publications listing the employee as an appraiser?
6. May the firm provide the employee with business cards that indicate the employee is an appraiser?

Addressing the questions presented in order we first examine the letterhead inquiry. RI-34 held in part:

"A law firm may note on its letterhead certain nonlawyer job titles and who performs those services provided that the information is not misleading, false, fraudulent or deceptive as to the fact that the nonlawyers are performing nonlawyer functions."

In that opinion it was pointed out that to list a law office administrator as the "Executive Director" of a law firm may mislead readers to conclude such an individual exercises control over the lawyers in the firm. Similarly, in this case, the inquirer's proposed layout of firm letterhead, listing the nonlawyer appraiser merely as an appraiser with no clear indication as to the nonlawyer status of such employee, particularly when the name is in close proximity to those of the partners and associates of the firm may mislead those who see it to believe this person is both a lawyer and an appraiser. The listing, therefore, of the employee on the letterhead is permissible but such listing must clearly indicate such person is not a lawyer.

The inquirer's alternate proposal regarding the letterhead, i.e., describing the employee as a "Retired Chief Judge, Michigan Tax Tribunal (Not a Licensed Lawyer)," is governed by MRPC 7.1, which states in part:

"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading or deceptive. A communication shall not:

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

"(b) be likely to create an unjustified expectation about results the lawyer can achieve . . . ."

In CI-850 a retired judge who wished to indicate the previously held judicial position on letterhead could do so provided the letterhead was not false, fraudulent, misleading or deceptive and that it was used only for personal, non-business correspondence, i.e., not law firm correspondence. Arizona Ethics OP 87-1 allowed a law firm with an "of counsel" relationship with a retired judge to place on its letterhead "judge of the superior court, retired." That opinion went on to maintain advertising of a lawyer's professional experience is permissible so long as it is true, not misleading, and does not create unjustified expectations about results the lawyer can achieve. It is this Committee's belief that the mere mention that a person is a former judge creates an expectation that such a person can achieve results which a person who is not a former judge cannot. Indeed, if this were not the case why would it be desired to advertise the fact that a person had been a judge? Moreover, the Arizona opinion dealt with a lawyer who was a retired judge. The situation herein involves a nonlawyer who is a former judge. Just as the lone word appraiser placed under the employee's name does not avoid the possible misconception that such a person is both a lawyer and an appraiser, the second proposal denoting the employee as "Retired Chief Judge, Michigan Tax Tribunal (Not a licensed Attorney)" does not avoid the possibility of a reader being misled. Since in Michigan most judges are required to be lawyers, one seeing the proposed language on a letterhead may be led to believe that this person was at one time a lawyer.

While neither of the proposed letterhead alternatives appears to be false, fraudulent or deceptive, it seems both alternatives tend to be or have strong possibilities of misleading. Further, because the stationery involved is obviously not to be used only for personal, non-business correspondence, it does not comport with CI-850. For these reasons both proposals are unacceptable.

The second question posed regards the appropriateness of sending announcements indicating the firm is employing a former Chief Judge of the Michigan Tax Tribunal as an appraiser. MRPC 7.1(a) prohibits a communication which contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole materially misleading.

The lack of mention in the announcement that the former judge is not now nor ever has been a lawyer could mislead readers into the belief that such was the case. Also, an unjustified expectation about results that can be achieved may arise out of advertising the fact that the employee is a former Chief Judge of the Michigan Tax Tribunal. Announcements are used only at one point in time, i.e., at the time the employee joins the firm, and are of limited distribution, e.g., to those persons already familiar with the firm. Therefore, although an accurate statement of the employee's former employment may be included in the announcement, the announcement must also clarify the employee's nonlawyer status.

The inquirer suggests that CI-850 is superseded in whole or part by recent US Supreme Court decisions permitting commercial speech by lawyers, e.g., Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 US 626 (1985). While the Zauderer court pointed out that commercial speech can be restricted only in the service of a substantial governmental interest, that court also stated:

"The States and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive or misleading." Zauderer, 471 US at 688. Emphasis added.

CI-850 is limited to the facts of that inquiry, i.e., a former judge who is a licensed lawyer, using personal letterhead.

The telephone directory listing communicates that appraisal services will be directly available from the employee, i.e., a nonlaw service is being marketed directly from the law firm. This is distinctly different from a prospective client contacting a lawyer at the firm, a determination being made that appraisal services are appropriate, and the firm being able to provide those services in house. We have no information about how the appraisal business generated would be monitored by the firm. If a customer seeks only appraisal services, and not legal services, the customer's confidences and secrets would normally not be protected, yet the customer receives those appraisal services from the law firm location, and may fully expect lawyer-client duties to apply to the services. MRPC 1.6. Current rules against in-person solicitation may be applicable if a customer contacts the appraiser employee for appraisal services, a determination is made that certain legal services are necessary or prudent, and the appraiser turns the customer over to law firm members. MRPC 7.3. For those reasons, if the appraiser intends to assist customers independent from those clients served by the law firm, the appraiser should open a separate office unaffiliated with the law firm. The directory listing is improper.

As to the question of placing the employee's name on the firm's door, the proposed office sign, sandwiching the employee's name between inscribed lines separating the firm members and the "of counsel" is troublesome. We are told that this will be the firm office sign. MRPC 5.4(b) prohibits a lawyer from forming a partnership with a nonlawyer if any of the activities of the partnership consist of the practice of law. MRPC 5.4(d) prohibits a lawyer from practicing in a professional corporation if a nonlawyer owns an interest. MRPC 7.5(d) prohibits lawyers from stating or implying that they practice in partnership unless that is the fact.

Taken as a whole, the proposed sign gives the impression that the appraiser employee has equal status in the firm to the lawyer members, and there is no disclaiming language on the sign which would clarify the employee's status in the firm structure. Setting off the employee between the lawyer members and of counsel, rather than providing a distinction to the employee's position, tends to suggest that a nonlaw business, i.e., the appraisal business, is available within the office. We therefore conclude that the proposed office sign is improper.

Also, although this inquiry appears to be focusing on proper communications about the employee appraiser, we note that the proposed letterhead shows certain lawyers as "of counsel" while the proposed office sign does not properly distinguish those same lawyers as "of counsel." This inconsistency should be clarified on the office sign.

Regarding the advertising in local newspapers and trade publications, the reasoning employed above with regard to the announcements and telephone directory listing applies here also.

Finally, with respect to the business card issue, the discussion regarding the letterhead inquiry applies here. While it is not improper for the firm to provide a nonlawyer employee with business cards, the cards should clearly indicate the person is a nonlawyer where it is not obvious from the job title given, as here, that the individual is not a lawyer. RI-34.