Tussle Over Titles
A few years ago, an ethics committee of the Association of the Bar of the City of New York considered the ancient origins of esquire in an effort to interpret its modern usage by lawyers.
In Opinion 1995-14 (1995), the committee traced the origins of esquire to the Middle Ages, when it was a title conferred on candidates for knighthood in England. Later, the term was extended to other mid-level dignitaries, including sheriffs, sergeants, justices of the peace and “barristers at law.”
In the United States, esquire over time came to refer “commonly and exclusively” to lawyers, stated the opinion, but how that happened is a mystery. The only certainty, the committee stated, is that “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.”
Actually, however, the law is not settled on whether a person using esquire (or Esq.) and other such seemingly benign designations as lawyer, attorney at law and juris doctor is entitled to practice law. Lawyers who use those terms indiscriminately may find themselves sliding down a slippery ethics slope.
Rule 7.1 (Communications Concerning a Lawyer’s Services) of the ABA Model Rules of Professional Conduct states that a lawyer “shall not make a false or misleading communication about the law or the lawyer’s services.” Rule 7.5 prohibits lawyers from using firm names, letterheads or other professional designations that violate Rule 7.1. (The ABA Model Rules are the basis for the professional conduct codes for lawyers in most states.)
Violations of Rule 7.1 or its state-level equivalents may lead to additional ethics breaches as well. An unlicensed law school graduate who misleads clients or others into believing that he or she is eligible to practice law, for instance, may run afoul of unauthorized-practice-of-law rules. And a lawyer employed in another business or profession who holds herself out as practicing law in that occupation may inadvertently create a lawyer-client relationship or trigger application of legal ethics rules to the second profession.
But neither the ABA Model Rules nor, in most cases, state conduct codes directly address a lawyer’s use of specific credentials, titles or degrees, so most guidance on how they should be used comes by way of ethics opinions.
THE USUAL SUSPECTS
Today, most of those opinions permit lawyers to use professional designations that are not “false or misleading.” Unfortunately, however, the issue is not as simple as it sounds.
The “usual suspects” in most of the opinions that tackle this issue are law school graduates who have not passed the bar, lawyers who are on inactive status or licensed only in another state, and lawyers engaged in a business or profession other than the practice of law.
Law school graduates who have not passed the bar are treated essentially as nonlawyers by UPL rules. Accordingly, unlicensed law school graduates may not practice law or hold themselves out as lawyers, and they are prohibited from identifying themselves by such terms as lawyer and attorney at law.
But short of that, opinions issued by the ABA and most state ethics committees have held that law school graduates awaiting bar exam results may be listed on firm letterhead and business cards so long as the public is not misled about whether they are entitled to practice law. ABA Informal Opinion 89-1527 (1989).
State ethics opinions generally agree that in some contexts it may not be enough for a law school graduate to list her J.D. credential on law firm and other communications without further explanation. A State Bar of Michigan opinion states that listing academic credentials on firm letterhead or business cards, even though accurate, might mislead prospective clients into thinking that the graduate is authorized to provide legal advice. Michigan Informal Opinion RI-34 (1989).
Lawyers on inactive status or licensed only in another state face similar restrictions on what professional designations they may use. Most jurisdictions permit lawyers to state that they are on inactive status as long as that information is properly qualified. It is considered misleading, for instance, for a lawyer on inactive status to identify herself as “licensed in,” “admitted to” or a “member of” a state’s bar, since those terms imply a present ability to practice law. But a lawyer in Rhode Island was permitted to use “attorney at law/retired” on letterhead. Rhode Island Opinion 96-24 (1996).
AVOIDING FALSE PERCEPTIONS
The issue of professional designation becomes particularly tricky for lawyers working in fields outside the law.
The concern is that the use of designations like J.D., Esq., lawyer or attorney at law will create a false perception that the lawyer is providing legal services or acting in her capacity as a lawyer in the other job—which may inadvertently create a lawyer-client relationship. And depending on the lawyer’s status with the bar, the lawyer in that relationship also may be in violation of the state’s UPL rules.
ABA Model Rule 5.7 (Responsibilities Regarding Law-Related Services) defines law-related services as those “not prohibited as unauthorized practice of law when provided by a nonlawyer.” Some examples include title insurance, financial planning, accounting and real estate counseling.
At the heart of Rule 5.7 is a presumption that the legal ethics rules apply whenever a lawyer performs law-related services or controls an entity that does so. A lawyer can overcome the presumption by ensuring that the services are separate and distinct from her law practice, if one exists, and that clients understand that the services provided by the law-related business are not legal services and thus not protected by the lawyer-client relationship.
But 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.
That rule can hold true even for lawyers on inactive status, as one Utah lawyer learned the hard way.
The lawyer identified himself as a lawyer on inactive status while working as a real estate broker. The Utah State Bar ethics committee first determined that a real estate brokerage qualifies as a law-related service, then concluded that listing a J.D. degree alone was not enough to invoke Rule 5.7. But the lawyer’s reference to being an inactive member of the bar amounted to holding himself out as a lawyer, the panel stated. The panel’s opinion was that the lawyer was subject to Utah’s legal ethics rules even while working as a real estate broker, and that he was in possible violation of the state’s UPL regulations since he was unlicensed there. Utah Opinion 01-05 (2001).
Recent opinions in other states agree with Utah’s conclusion that the use of J.D. should be interpreted to mean that the individual has earned that degree, not that she is holding herself out as a licensed lawyer.
There is less agreement, however, on when a lawyer who is unlicensed or inactive in a particular jurisdiction may use designations such as Esq., lawyer or attorney at law.
The New York City bar’s 1995 opinion illustrates the dilemma. There, the committee determined that a lawyer employed in a nonlegal capacity by a nonprofit organization could use Esq.—but not attorney at law—when communicating on behalf of the organization. The committee stated that it “would be more concerned if the nonpracticing attorneys were signing correspondence or otherwise identifying themselves as, for example, ‘J. Doe, attorney at law’ as opposed to ‘J. Doe, Esq.’ ” New York City Op. 1995-14.
But some jurisdictions have reservations about the use of Esq. The Ohio Supreme Court’s Board of Commissioners on Grievances and Discipline, for example, prohibited a lawyer who was not licensed to practice law in the state from appending Esq. to his signature on business correspondence because it was deemed to connote licensure in Ohio. Ohio S. Ct. Opinion 91-24 (1991).
There are other unresolved issues as well, such as whether attorney should be subject to the same restrictions as attorney at law, and whether a lawyer should be prohibited from adding a certain designation to her signature while being allowed to use it in other circumstances.
It’s almost enough to make a modern-day lawyer wish that esquire had been left behind in the Middle Ages with all those knights-in-waiting.
Kathryn R. Thompson is research counsel for the ABA Center for Professional Responsibility.
