The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
June 18, 1998
June 18, 1998
[Affirmed by the Board of Governors on February 12, 1999]
It is impermissible for in-house attorneys who are employed to represent insureds to state or imply that they practice in a separate independent law firm. The relationship between the attorney and the insurer should be disclosed to the client and appear on the letterhead and business card of the attorney.
Note: Subsequent to the adoption of this opinion, the Supreme Court of Florida adopted subdivision (g) of Rule 4-7.9 [then Rule 4-7.10], allowing in-house insurance defense counsel in captive law firm to practice under a law firm name such as “Smith & Associates” or “Law office of Smith” if the “firm” is functionally and physically separate from the insurance company. Amendments to Rules Regulating The Florida Bar Re: Rules of Professional Conduct, 838 So.2d 1140 (Fla. 2003).
RPC: 4-7.1, 4-7.7(f), 4-8.4(c)
Opinions: 93-6; 93-7; 94-6; California Ethics Opinion 1987-91; Tennessee Ethics Opinion 93-F-132 and Ohio Opinion 95-14; Virginia Opinion 775; Pennsylvania Formal Opinion 96-196
Cases: The Florida Bar v. Hastings, 523 So.2d 571 (Fla. 1988); In re Petition of Youngblood, 895 S.W.2d 322 (Tenn. 1995)
Recently the Professional Ethics Committee has been asked several questions concerning the relationship between insurers, insureds and attorneys representing insureds who are paid by the insurer. In connection with those inquiries, the committee has become concerned with the question whether salaried staff attorneys who are employed by an insurance company to participate in an "in-house law firm" may use a "firm name" that appears to be that of a separate and independent law firm.
The ethics rules clearly indicate that attorneys may not hold themselves out as practicing in a law firm unless the firm itself, and the relationships implied by the name, are bona fide. Rule 4-7.1 of the Rules Regulating The Florida Bar prohibits an attorney from making false, misleading, or deceptive statements about the lawyer or the lawyer's services. Additionally, Rule 4-7.7(f) prohibits attorneys from stating or implying that they practice in a partnership or other organization unless it is a fact. Finally, Rule 4-8.4(c) prohibits an attorney from engaging in conduct involving dishonesty, fraud, deceit or misrepresentation.
An attorney has been disciplined for practicing under a partnership name without actually having a partnership. The Florida Bar v. Hastings, 523 So.2d 571 (Fla. 1988). This committee itself has expressed disapproval of the use of firm names which mislead the public as to the actual nature of the relationship between the attorneys or the firm's practice. Florida Opinions 94-6; 93-7; 93-6.
Concerning this particular issue, the Supreme Court of Tennessee has criticized the practice of holding out in-house attorneys as a distinct autonomous law firm which is independent of the employer insurer. In re Petition of Youngblood, 895 S.W.2d 322 (Tenn. 1995). In this case the Supreme Court of Tennessee found that the holding out of an in-house attorney-employee as a separate and independent law firm constitutes an unethical and deceptive practice. The court stated that "false, misleading fraudulent and deceptive representations are by their very nature harmful to the profession whose credibility is dependent upon its integrity." Id. at 332.
Ethics committees in other states have specifically found that it is unethical and deceptive for salaried in-house attorneys, employed by an insurance company, to represent themselves to be outside counsel. Oklahoma Opinion 309; Virginia Opinion 775; Ohio Opinion 95-14; Tennessee Ethics Opinion 93-F-132; California Ethics Opinion 1987-91. The use of the fictitious firm name misleads the public and the insured client as to the true relationship between the insurance company and its attorneys. California Opinion 1987-91. For this reason the nature of the relationship between the attorneys and the insurer should be disclosed on the letterhead. Pennsylvania Formal Opinion 96-196; California Opinion 1987-91.
We therefore conclude that it is impermissible for in-house attorneys who are employed to represent insureds to state or imply that they practice in a separate independent law firm. Furthermore, the relationship between the attorney and the insurer should be fully disclosed to the client and appear on the letterhead and business card of the attorney. Lawyers who are employees of insurance companies must indicate their employment status and affiliation to their employer on their letterhead. In reaching this conclusion the committee withdraws Opinion 78-6 which permits in-house counsel to use letterhead that does not contain the corporate letterhead. Additionally, the committee does not address any unlicensed practice of law issues that may be raised by this arrangement.