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. Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22. 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 (See Advisory Opinions 63-20 [since withdrawn], 64-50 [since withdrawn], 66-19 [since withdrawn]).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.