MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS
DOCKET NO. 2000-31
Style of letterhead to be used by lawyer-employees of insurer
You have asked for the Committee's opinion regarding the use of proposed letterhead by the lawyer-employees of an insurer. These lawyers provide insurance defense to people who are insured by their employer. You direct our attention to the recent Indiana Supreme Court case, Cincinnati Ins. Co. v. Wills, 717 N.E. 2d 151 (Ind. 1999).
The Rules of Professional Conduct clearly prohibit lawyers from using false or misleading communications about themselves or the their services. Rule 7.1. The rules carry this prohibition forward in Rule 7.5 which prohibits a lawyer from using a letter-
head or firm name that violates Rule 7.1 and specifically provides: "Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact." Rule 7.5(d).
The Committee generally refrains from designing letterheads, advertising, or other forms of a lawyer's communications. Nevertheless, because you have submitted four specific proposals and the Indiana court in Cincinnati provided valuable insight into this issue, the Committee advises you that none of your proposals comply with Rules 7.1 and 7.5 and directs your attention to the admonition of the majority in Cincinnati:
…It is sufficient that the Indiana attorneys practicing under the name Berlon & Timmel take immediate action to discontinue use of Berlon & Timmel or any other names suggesting a legal entity other than Cincinnati to describe their practice as employees of Cincinnati. (Emphasis supplied.)
(Slip Opinion pp.29-30.) The Committee believes that a lawyer-employee of a corporation ought to clearly represent that fact through letterhead that purports to be the corporation's. In Cincinnati the court cogently noted when discussing the issue of whether the corporation was engaged in the unauthorized practice of law that using persons who are licensed to act does not cause the corporation to violate the licensing statutes:
Notwithstanding the continuing ban, indeed criminalization of "practicing law" by any "person" not an attorney, the Rules of Professional Conduct, statutes and well accepted forms of practice clearly imply that the entity itself is not unlawfully practicing law as long as the activity is conducted through licensed attorneys. It is of course true that a legal entity can be responsible for the professional actions of its partners, employees and agents under standard doctrines of respondeat superior, and in that sense is viewed as engaged in the activity. But that does not mean the entity unlawfully practices law any more than Federal Express unlawfully pilots airplanes. Rather the practice of law, the piloting of airplanes and many other activities are required to be performed by licensed professionals. And, as a general proposition, where the law requires a license, agency doctrine permits an unlicensed legal entity to employ licensed agents to perform those acts requiring a license. RESTATEMENT (SECOND) OF AGENCY § 19 cmt. D (1958). In each case the lawfulness of the entity's activities turns on whether the individual is properly licensed. (Footnote omitted.)
(Slip Opinion 17.) The crux of this analysis rests on the logic that while a company may be engaged in a particular activity that requires individuals to be licensed, so long as the company ensures that its employees are licensed to perform the activity, the company does not violate the licensing law. In the context of describing, for purposes of a letterhead, the relationship between the employees and those dealing with their employer through them the Committee perceives no reason to describe the relationship through artful drafting and textual disclosures. Rather, the Committee opines that employee-lawyers must use their employer's letterhead, including the employer's traditional marks, so as not to be distinguished from its other employees. This letterhead may describe the lawyers' employment relationship and may include corporate titles, if factual. Similarly, letterhead, as submitted, that suggests a distinct and possibly separate relationship through the use of the term "Law Offices," despite its textual disclosures, appears misleading.