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Formal Opinion 1994-5

May 5, 1994

ACTION: FORMAL OPINION

TOPIC: Name; use of title "Esquire"

OPINION:

DIGEST: Attorney may ethically use the title "Esq." after his or her name, even when acting in a non-legal capacity.

CODE: DRs 1-102(A)(4); 2-101(A); 2-101(C)(1); EC 2-13.

QUESTION

May an attorney properly append the suffix "Esq." to his or her name when not acting in a legal capacity?

OPINION

The inquirer is counsel to a not-for-profit organization that employs staff members and volunteers who happen to be attorneys, but who perform non-legal functions such as public relations, administration, or communicating with members of the organization about the organization's positions on particular issues. The organization identifies these attorneys, who do not practice law on its behalf, in its documents with the title "Esq." following their names. The inquirer asks whether this identification is proper and whether the attorneys may appropriately use the title when communicating on behalf of the organization. We answer these questions affirmatively.

The use of the title "Esquire" has its origins in the Middle Ages. An esquire was a candidate for knighthood, acting as attendant and shield bearer for a knight. n1 Webster's New World Dictionary (1980). Over time, the title became one denoting respect, rather than a specific occupation.

n1 The word is derived from the Latin "scutum" -- a shield, and Middle English: "esquier" -- a shield bearer.

According to the Encyclopedia Britannica, after the decline of the feudal system, the title of "Esquire" was perpetuated by certain lawyers, among them William Blackstone and Edward Coke. These lawyers drew up lists of those they thought entitled to carry the title. The lists included various classes of men who were sons of peers, minor nobles, honorary knights and those who were designated with the title "esquire" upon appointment to office. These appointments were to both legal and non-legal offices and included among others, "Royal Academicians." However, it appears that the title has always been an arbitrary conferment and never reserved exclusively to lawyers. See, e.g., Black's Law Dictionary (6th ed. 1990) (defining "esquire" as a title of dignity next above gentleman, and below knight; also a title of office given to sheriffs, sergeants, and barristers at law, justices of the peace and others; in the United States, title commonly appended after name of attorney); Random House Dictionary of the English Language (2nd ed. 1987) (defining esquire as: "an unofficial title of respect having no precise significance, sometimes placed, esp. in abbreviated form, after a man's surname in formal written address; in the U.S., usually applied to lawyers, women as well as men; in Britain, applied to a commoner considered to have gained the social position of gentleman").

It is not clear how the title "Esquire" came to be used so commonly (and seemingly so exclusively) by lawyers in the United States. There is no authority that reserves the title "Esquire" for the exclusive use of lawyers. n2 Because neither the law nor any established ethical rule governs the use of the title, it would be presumptuous for any non-legislative body to purport to regulate its use. Nonetheless, 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.

n2 For example, New York's Judiciary Law contains no reference to the use of the term esquire in its provisions governing "Attorneys and Counsellors." Indeed, it has been noted that:

an 'esquire' has no relation to law. It is often added to the names of poets or artists; and the term may be applied to a landed proprietor or a country squire; that being one of courtesy. . . . Nowhere do we find that the term 'esquire' denotes an attorney at law.

Antonelli v. Silvestri, 137 N.E.2d 146, 147-48 (Ohio App. 1955).

The only ethical question posed by the use of the title "esquire" by lawyers acting in a non-legal capacity is whether such use if misleading. See DR 1-102(A)(4) (providing that a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); DR 2-101(A). We do not believe it is. DR 2-101(C)(1) permits a lawyer to use, in connection with his or her name, a designation indicating training in the law, such as "J.D." See ABA Formal Op. 321 (1969); N.Y. State 105(a) (1969); Maryland 85-21 (1984). Accord D.C. Op. 183 (1987); Iowa Op. 85-14 (1986). But see Philadelphia Op. 86-98 (1986). The title "esquire" does not legally designate an individual as a lawyer because it is not conferred in this country as an academic degree or license. It has, however, been adopted by lawyers by convention as a form of designation. Thus, one using the title in the United States is identifying himself or herself as a lawyer. But, just as a lawyer may identify his or her professional affiliation in a social context, see N.Y. State 105(a) (1969), and that a non-admitted law school graduate may use the title "J.D." on business cards and letterhead, see Maryland 85-21 (1984), the use of the title "esquire" by a lawyer in a non-legal context does not constitute an ethical transgression.

We would be more concerned if the non-practicing attorneys were signing correspondence or otherwise identifying themselves as, for example, "J. Doe, Attorney-at-Law," as opposed to "J. Doe, Esq." A recipient of such a communication could well conclude, incorrectly, that the lawyer was acting in a legal capacity. EC 2-13 states in this regard that "[i]n order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status." If a member of the organization used the title "attorney" in correspondence while acting in a non-legal capacity, this might convey the impression that a legal position is being taken on behalf of the organization or that a legal opinion is being rendered. Similarly, if one were so identified in meeting minutes it might convey the impression that a member is counsel to the committee or the organization. These concerns, however, do not affect our conclusion that the simple use of the title "Esq." after an attorney's name is appropriate.

CONCLUSION

For the foregoing reasons, the question presented is answered in the affirmative.