MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2014-02
You have asked the Committee to advise whether you may, on the business card that you use as an attorney, identify yourself as a homicide detective employed by Baltimore City.
You have asked the Committee to advise whether you may, on the business card that you use as an attorney, identify yourself as a homicide detective employed by Baltimore City. The essential facts, as you have stated them, are as follows:
- You have been employed by Baltimore City as a homicide detective for many years, and expect to continue working as a homicide detective as your full time job for the foreseeable future.
- You recently were admitted to the Maryland Bar. You intend to practice law as an additional profession separate from your employment as a homicide detective.
- You ask whether it would be permissible, on your card, to identify yourself both as a lawyer and a homicide detective for Baltimore City. You state that you intend to use the card primarily at Bar Association events and mixers, social functions involving other attorneys, professional conferences, and similar affairs. You do not intend to give the business card to any witness or suspect for any Baltimore City homicide case that you are investigating or in which you are otherwise involved.
You have asked three separate questions, each addressed below. As an initial matter, however, we want to make clear that this opinion only addresses the Maryland Lawyers' Rules of Professional Conduct (MLRPC). We do not, and cannot, opine on any applicable ethics rules, codes of conduct, restrictions on secondary employment, or other employment policies to which to which you may be subject as a Baltimore City police detective.
I. Is it ethically permissible to utilize and distribute personal business cards that identify you as a homicide detective and attorney, in a single card, via inclusion of the title "Detective" prior to your name and the suffix "Esq." after your name?
We have noted in several prior opinions that there is no per se prohibition on an attorney identifying multiple professions on his or her business card or letterhead, but that the attorney must not use the card or letterhead in a manner that violates the attorney's ethical obligations.
In 1993, the Committee stated that no Rule in the Maryland Lawyers' Rules of Professional Conduct (MLRPC) prohibited per se a non-practicing lawyer from identifying himself or herself on a business card as both a lawyer and accountant, by using the titles "C.P.A., J.D." Formal Ethics Opinion 93-01. However, citing MLRPC Rules 7.1 and 7.5, that opinion cautioned the attorney wishing to do so that he or she must "ensure that the advertising fully complied with the rules governing advertising"; "that the other professions were not utilized to 'feed' the attorney's law practice"; and that the attorney's "clients are not misled into believing that you are rendering legal, as opposed to accounting, advice, based upon the reference on your business card that you have earned a legal degree." Id.
In 1985, the Committee reached the same conclusion under the previous Maryland Code of Professional Responsibility, when an attorney inquired about identifying three professions on business cards and letterhead-internal medicine, pharmacology-toxicology, and attorney at law. Formal Ethics Opinion 85-82. The Committee stated that "there is no prohibition on the practice of a second (or third) profession other than the practice of law, provided that the practice of law must be practiced separately from any other profession." Id.; see also Formal Ethics Opinion 79-02 (stating that a lawyer could identify himself or herself on her letterhead as both an attorney and CPA).
This situation is somewhat different, because a Baltimore City homicide detective is also a public official, which is not true of an accountant, real estate agent, or doctor in private practice. In 1985, under the Maryland Code of Professional Responsibility, when an attorney asked if he could identify, on his business card, that he was also an officer in the U.S. Army Reserves, assigned to the Military Intelligence Branch. Formal Ethics Opinion 85-51. The Committee concluded that the printing of such a card under those circumstances would not be per se a violation of any ethical rule under the Code, because it was not inherently false or misleading or "likely to create false expectations of favorable results." Id.
In this case, we believe that it also would not be per se violative of the MLRPC for an attorney to identify himself or herself on a business card both as an attorney and a homicide detective. The attorney, however, must make sure that the card is not used in any manner that would violate the advertising or other rules in the MLRPC. In particular, (1) in order to comply with Rule 7.1, the attorney should avoid situations where there may be a relationship or perceived relationship between the attorney's role as a lawyer and his or her role as a detective and (2) we believe that the attorney runs a risk of violating Rule 7.1 if he or she identifies him or herself as a current "Baltimore City" homicide detective on an attorney business card.
1. Rule 7.1 of the Maryland Lawyer's Rules of Professional Conduct provides that a lawyer "shall not make a false or misleading communication about the lawyer or the lawyer's services," while Rule 7.1(b) states that a communication is false or misleading if it "is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law." In the same vein, Rule 8.4(f) states that it is professional misconduct for a lawyer to "state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Maryland Lawyers' Rules of Professional Conduct or other law." While acting as a lawyer, the attorney must avoid the implication that he or she could achieve results through any improper influence or through any authority conferred by the lawyer's other employment as a police detective.
A lawyer in this position must also avoid using his or her status as a police detective as a means to generate referrals or conduct in-person solicitations, see MLRPC Rule 7.3, and the lawyer should avoid using the status as a police detective to imply that he or she is a specialist in a particular field of law, see MLRPC Rule 7.4(a). We note that you have stated that do not intend to work as a lawyer on any matters related to your work as a homicide detective.
2. These problems are heightened, in our view, if your business card were to identify you as a current "Baltimore City Homicide Detective." Rule 7.5(a) states that a lawyer "shall not use a firm name, letterhead or other professional designation that violates Rule 7.1," and that "[a] trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency." As stated in Comment 2 to Rule 7.5:
A lawyer in private practice may not practice under a name which implies any connection with the government or any agency of the federal government, any state or any political subdivision, or with a public or charitable legal services organization. This is to prevent a situation where nonlawyers might conclude that they are dealing with an agency established or sanctioned by the government or one funded by either the government or public contributions and thus charging lower fees. The use of any of the following ordinarily would violate this rule:
(1) The proper name of a government unit, whether or not identified with the type of unit. . . .
Including on your business card that you are a "Baltimore City Homicide Detective" is not precisely a 'trade name' within the meaning of this rule. However, these same principles would apply to the interpretation of Rule 7.1, and the requirement in Rule 7.5 that any "professional designation" must comply with Rule 7.1. We caution, therefore that by identifying yourself as a Baltimore City detective on your business card, you run a significant risk of creating an unjustified expectation of potential clients that such status may lead to results or influence otherwise not attainable.
Finally, while you have stated that you do not intend to utilize this business card in relation to your work as a homicide detective, we reaffirm the Committee's statement in 1993 that an attorney who puts two professions on his or her card also must ensure that the attorney's clients are not misled into believing that the attorney is rendering legal advice, when he or she is practicing the other identified profession. In this context, where the attorney is also a detective or other employee of a large organization, the attorney must not use his or her status as a lawyer to give the false impression that he is acting as legal counsel for that organization. In addition, as discussed in Section III, below, identifying yourself as an attorney while working as a detective may subject your conduct as a detective to the MLRPC.
II. Is it ethically permissible to utilize and distribute the business card described above to network among other professionals and attempt to gain practical legal experience working as an attorney, on a part-time basis, in any area of law that poses no conflict with my current employment?
As stated in Section I, we do not believe that there is a per se prohibition on such conduct, but the business card and any other materials must be used in a manner consistent with the MLRPC and in particular must not be used in a way that misrepresents the attorney's status, ability to influence cases, role as an attorney or as a detective in a particular case, or other matter.
III. Is it ethically permissible for an attorney to use the title "Esq." after his or her name, even when acting in a non-legal capacity?
The term "Esquire" has no formal status in the legal profession - it is only by usage that Americans today commonly understand the term to refer to an American lawyer. For example, Black's Law Dictionary (9th ed., 2009), defines the term "Esquire" as a "title of courtesy commonly appended after the name of a lawyer," but only as the fourth possibility - after noting that the term also applies to candidates for knighthood, landed gentlemen, and members of the gentry that rank below a knight. In 1994, the New York State Committee on Professional and Judicial Ethics published a brief history of the usage of the term, concluding that:
There is no authority that reserves the title "Esquire" for the exclusive use of lawyers. Because neither the law nor any established ethical rule governs the use of the title, it would be presumptuous for any non-legislative body to purport to regulate its use. Nonetheless, based on common usage it is fair to state that if the title appears after a person's name, that person may be presumed to be a lawyer.
N.Y. Bar Ass'n, Committee on Professional and Judicial Ethics, Formal Opinion 1994-05. In short, an attorney who appends the term "Esquire" to his name should assume that the reasonable person will perceive this as a statement that "I am a lawyer."
We agree with the N.Y. Committee on Professional and Judicial Ethics that there is no per se rule that would prohibit an attorney from attaching "Esq." to his or her name when not practicing as a lawyer. As in Section I, above, however, the attorney must ensure that he or she does not use that term in a context in which a person could reasonably believe that the attorney is acting as a lawyer when the attorney is not doing so. See MLRPC, Rule 5.7 (noting that the Rules of Professional Conduct would apply to any services provided by the lawyer, where the lawyer fails to take measures to separate those services from legal services). As one commentator noted, "the injudicious use of designations such as Esq., lawyer or attorney at law may trigger application of the legal ethics rules because their use suggests that the lawyer is holding herself out as a legal practitioner even in a field outside the practice of law." Katheryn A. Thompson, Tussle Over Titles, ABA Journal (Jan. 8, 2006).
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