UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 93-07
ABC law firm maintains a general civil practice with its main office in one city and a branch office in another city. Several of the lawyers in the firm represent lenders and creditors in mortgage foreclosure and collection actions. Several other lawyers in the firm have primarily a defense practice. The regular firm letterhead lists all lawyers in the firm. The lawyers practicing in the foreclosure and collection areas would like to use a separate letterhead in those cases, which would indicate only the lawyer's name, address, telephone, and fax numbers, without including the firm's name or the names of other lawyers in the firm. The lawyers would continue to practice from the firm's offices and would use the regular firm letterhead in other cases.
Question:
Is it permissible for lawyers practicing in a firm to use, in certain cases, separate letterhead that does not include the name of the law firm?
Summary:
Letterhead that omits the name of the law firm may mislead recipients of correspondence as to the lawyer's affiliation with a firm and thus violates Rules 7.1 and 7.5.
Opinion:
Rule of Professional Conduct 7.5 governs the permissible content of law firm letterheads. Rule 7.5(a) generally prohibits a lawyer from using any letterhead that contains a false or misleading communication in violation of Rule 7.1. Rule 7.5(d) specifically prohibits any letterhead that implies the existence of a partnership when none exists, the opposite of the inquiry presented here. The question, then, is whether letterhead which fails to acknowledge the existence of a firm would be false and misleading so as to be barred under Rule 7.1.
Rule 7.1(a) provides that a statement is false and misleading if it "omits a fact necessary to make the statement considered as a whole not materially misleading." The apparent purpose of creating a separate letterhead without the firm's name is to avoid alerting the recipient to the lawyer's affiliation with a law firm. We find that the omission, therefore, may mislead the recipient of the letter in a way prohibited under Rule 7.1 and would be improper under Rule 7.5.
In Advisory Opinion 91-18, we considered a situation in which an employee of a corporation, who also was a lawyer, wanted to represent the employer in collection work using a letterhead that would have the lawyer's name, but not the name of the employer. The purpose of the letterhead was to give the impression that the lawyer was independent outside counsel. The Committee concluded then that such a letterhead would be improper. We believe that the same reasoning applies in this inquiry.
In addition to misleading non-clients as to the lawyer's affiliation with a law firm, the letterhead proposed could mislead clients as well. For example, confidential client information may be shared among lawyers within the same firm without specific client consent. By using a letterhead without any firm designation, the lawyer may give the false impression to the client that confidences will not be shared with any other person.
Finally, we note that, if the law firm is identified properly on the letterhead, there is no requirement that every lawyer in the firm also be listed on the letterhead. A law firm may provide each lawyer with separate letterhead that includes only the name of that lawyer, as long as the name of the law firm also is included.