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Opinion 79-2 & 81-2 (Consolidated)

FLORIDA BAR ETHICS OPINION
CONSOLIDATED OPINION 79-2 AND 81-2
March 12, 1981
Advisory ethics opinions are not binding.
An attorney may be listed as “General Counsel” or “Consultant” on a client’s letterhead and
elsewhere if attorney and client have a continuing relationship and the attorney is the client’s
primary and usual attorney for matters requiring legal guidance or representation.
CPR:
Opinions:

DR 2-101(A), (B); DR 2-102(A)
63-20, 64-50, 66-19, 70-42, 79-2

Chairman Ervin stated the opinion of the committee:
In inquiry 79-2 the Committee is asked whether a lawyer may permit his
name to appear on a regional planning council’s letterhead under the designation
“Consultants.” The lawyer’s name (or his firm name) would be followed by the
word “attorney,” or like designation, and other professionals who serve as
consultants would also be listed with indication of the professional areas of
consultation.
In inquiry 81-2 the Committee is asked whether a lawyer may permit his name to appear
on a regular client’s letterhead as “General Counsel;” whether he may be indicated as “General
Counsel” in articles written by him for the client’s newsletter; and whether he may be listed as
“General Counsel” in the client’s membership directory.
Inquiry 79-2 was received prior to the most recent amendment of the Florida Code of
Professional Responsibility (see 380 So.2d 435) and was under consideration at the time of said
amendment. Inquiry 81-2 was received after the effective date of the amendment. The
Committee is of the view that amendment of the Code by the Florida Supreme Court requires
re-examination of prior opinions. A synopsis of the history of this issue may be helpful.
Prior to adoption of the Florida Code of Professional Responsibility the Professional
Ethics Committee, relying on Canon 27, expressed its opinion that an attorney could be
identified as “General Counsel” by a client on client letterhead and other publications only where
the attorney devoted his full and complete time to that client. (See Advisory Opinions 63-20
[since withdrawn], 64-50 [since withdrawn], 66-19 [since withdrawn]).
Thereafter, the Florida Code of Professional Responsibility was adopted by the Supreme
Court of Florida. DR 2-102(A)(4) of that Code provided in pertinent part that:
. . . A lawyer or law firm may be designated as “General Counsel” or by similar
professional reference on stationery of a client if he or the firm devotes a
substantial amount of his or its professional time in the representation of that
client. . . .

In Advisory Opinion 70-42 [since withdrawn] the Committee recognized the new
“substantial amount” of time criteria adopted by the Supreme Court of Florida, noting, however,
that:
. . . It would seem to be rare wherein an attorney engaged in private practice
would be justified in listing himself as “general counsel” on a letterhead, much
less in any other materials such as publications or literature. . . .
The Supreme Court of Florida in 1980 significantly revised those portions of the Florida
Code of Professional Responsibility governing “public communications,” advertising and other
forms of professional announcement and notices. (See 380 So.2d 435 and The Florida Bar
Journal, September 1980, pp. 80-89.) In these revisions DR 2-102(A)(4) in its past form, and its
express criteria of “substantial amount” of time, was deleted.
The present inquiries are governed by new Code provisions including, but not necessarily
limited to, the following pertinent provisions:
DR 2-102 Professional Notices, Letterheads, Offices, and Law Lists.
(A) A lawyer or law firm shall not use or participate in the use of a
professional card, professional announcement card, office sign, letterhead,
telephone directory listing, law list, legal directory listing or a similar professional
notice or device if it includes a statement or claim that is false, fraudulent (sic),
misleading, or deceptive within the meaning of DR 2-101(B) or that violates the
regulations contained in DR 2-101(C).
***
DR 2-101 Publicity and Advertising
(A) A lawyer shall not, on behalf of himself, his partner, associate or any
other lawyer affiliated with him or his firm, use or participate in the use of any
form of public communication containing a false, fraudulent, misleading, or
deceptive statement or claim.
(B) Without limitation a false, fraudulent, misleading, or deceptive statement
or claim includes a statement or claim which:
(1) Contains a material misrepresentation of fact;
(2) Omits to state any material fact necessary to make the statement, in the
light of all circumstances, not misleading;
(3) Is intended or is likely to create an unjustified expectation;
***

(5) Is intended or is likely to convey the impression that the lawyer is in a
position to influence improperly any court, tribunal, or other public body or
official;
***
(7) Contains a representation or implication that is likely to cause an
ordinary prudent person to misunderstand or be deceived or fails to contain
reasonable warnings or disclaimers necessary to make a representation or
implication not deceptive.
It is the opinion of the Committee that, in light of the foregoing amendments to the
Florida Code of Professional Responsibility, an attorney may be listed, or indicated, as “General
Counsel” by the attorney’s client on client letterhead, in a client directory, and in connection
with newsletter articles where the attorney serves in a bona fide relationship with the client as
general counsel. While the term “General Counsel” is not defined in the Code, the Committee is
of the opinion that the attorney should, in order for such designation to be publicly employed by
the attorney or the client, have a continuing relationship and status as the client’s primary
attorney for most, if not all, matters of the client requiring legal counsel or representation.
While the listing of an attorney as “Consultant” is of less precision, the Committee is of
the opinion that under revised Code provisions such listing is not prohibited where the bona fide,
continuing consultant relationship exists and the attorney is, in fact, the primary and usual
attorney to be called upon for general legal guidance and consultation when matters requiring
such arise. The Committee recognizes that it may be helpful to the regional planning council and
the public to have the names of such professional consultants on agency letterhead.
The Committee is of the opinion that the use of such terms by a lawyer, or his
authorization of their use by a client, in the absence of a bona fide relationship as “General
Counsel” or as attorney “Consultant” as described above, would be misleading and contrary to
the commands of DR 2-101(A) and (B) and DR 2-102(A). To the extent prior Advisory Opinion
70-42 [since withdrawn] is in conflict with the foregoing, it is hereby receded from by reason of
amendment of the Florida Code of Professional Responsibility.