A law firm has included on the letterhead of its stationery the name of the legal secretary for the law firm who is not licensed to practice law.
Is there any violation of the Code of Ethics in using this form of letterhead?
Although Canon II of the Code of Professional Responsibility says that a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available, there are certain restrictions in this area. When viewed in light of these restrictions, the practice employed by the law firm violates the Code in at least two respects. First of all, it contravenes the express language of the Code. Secondly, to allow a law firm to use the name of its legal secretary on the letterhead could mislead the public in their dealings with that law firm.
DR 2-102 states:
"A lawyer or law firm shall not use . . . letterhead . . . except that the following may be used if they are in dignified form: . . . . .
(4) A letterhead of a lawyer identifying him by name and as a lawyer, and giving his addresses, telephone numbers, the name of his law firm, associates and any information permitted under DR 2-105. (which deals with specialties) A letterhead of a law firm may also give names of members and associates, and names and dates relating to deceased and retired members."
We do not find a Texas opinion which deals directly with this point, there are other opinions which give some indication as to how this language is to be construed. Texas Opinion 64 (February 1953) says "a law firm may list on its letterhead a partner or an associate who is not licensed in Texas provided he is licensed in another state . . . and the letterhead correctly reflects that he is not licensed to practice in Texas." The license to practice law seems to be the dividing line between what is proper and what is improper on the letterhead of a law firm's stationery. As this opinion shows, a lawyer need not necessarily be licensed in Texas, but if he is not, then he must be licensed in another state and the public must be made aware of this fact. The legal secretary for the law firm is not licensed to practice law in Texas nor is she licensed to practice in any other state. When DR 2-102 limits the names on letterheads to "Members and Associates," it seems to be clearly contemplating that only those licensed to practice law are to be considered members and associates. Based on this reasoning, then, it seems that to allow a law firm to list the name of its secretary on the letterhead would be in direct violation of DR 2-102.
A second reason why this practice should not be allowed is because it is probably misleading. EC 2-13 of the Code of Professional Responsibility says "in order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status."
In Texas Opinion 227 (March 1959), a law firm was allowed to carry an out-of-state partner's name on the letterhead provided the letterhead specified that he was only licensed to practice in that state, and provided "there is no other misleading or deceptive circumstances which would lead anyone to believe the out-of-state partner is admitted to practice in Texas." In the case of the law firm, which is the subject of this opinion, the letterhead simply lists one of the attorneys as president, another attorney as vice-president, and the legal secretary as secretary-treasurer. There is no reference as to the professional status of any of the three. This could easily lead one to the conclusion that they were all of equal stature in the firm, and that all three were attorneys. A person dealing with the legal secretary could easily assume that she was licensed to practice law in the State of Texas, when in fact she is not licensed to do so. This is the type of misrepresentation that the Code of Professional Responsibility tries to avoid.
Informal Opinion 1000 of the ABA held that it would be improper to list a salaried investigator on the firm letterhead as "Staff Investigator" or in any other manner. Informal Opinion 619 of the ABA held that it was not proper for the name of a lawyer's secretary to appear on his letterhead and relied in part on the following quotation from Drinker's Legal Ethics, Pages 228-9, "A lawyer's letterhead may not carry the name of a client or of a patent agent associate, non-lawyer, notary or engineer or clerk or student or other layman, or give the names of references, or state that a laymen's association is associated with him in handling collections."
Therefore, for the above cited reasons, it seems that to continue the practice of listing the name of the legal secretary on the letterhead of the law office would be in violation of the Code of Professional Responsibility.