Formal Opinion 1995-14: Advertising; Letterhead; Honorary Degrees

December 29, 1995

ACTION: Formal Opinion

OPINION:

TOPIC: Advertising; Letterhead; Honorary Degrees.

DIGEST: A lawyer may list honorary degrees in advertisements and on letterhead. The nature of honorary degrees, fellowships and similar distinctions, however, requires that particular care be taken to ensure that their listing be in a precise manner that will not, either by affirmative statement or by omission, be misleading.

CODE: DRs 2-101(A), 2-101(B)(5), 2-101(C), DR 2-101(C)(1), 2-102(F), 2-103.

QUESTION

May a lawyer mention honorary degrees he or she has received in advertisements or on letterhead?

OPINION

An attorney was awarded an honorary fellowship in jurisprudence from an educational institution, and asks whether the degree may be mentioned in his advertisements and listed on his letterhead.

The issue of the use by lawyers of academic degrees or distinctions on letterheads or other media has been addressed by several ethics committees, but the issue of the treatment of honorary degrees has received surprisingly scant attention. Also, the rules governing the propriety of listing academic credentials have changed significantly over the period during which the opinions on this topic were issued.

Historically, under the former Canons of Professional Ethics, in effect from 1908 to 1969, the listing of academic degrees or professional distinctions was not allowed. Such listing was (with few specified exceptions involving admiralty and patent practice) held to be improper advertising under Canon 27. As such, committee opinions at the time uniformly forbade the mention of academic degrees on lawyers’ professional letterheads. See, e.g., N.Y. City 869 (1969); N.Y. State 105 (1969); ABA Inf. 1001 (1968); ABA Inf. C-445 (1961). This prohibition was, in one opinion, specifically extended to honorary degrees. ABA Inf. C-409 (1961).

The rules governing this issue were changed when the Canons of Professional Ethics were replaced by the Code of Professional Responsibility. The Code, as adopted by the New York State Bar Association in 1970, contained two provisions addressing the provision of information concerning lawyers’ academic degrees. DR 2-101(B)(5), relating to advertising, provided in pertinent part that “a lawyer may publish or broadcast, subject to DR 2-103, the following information . . .: Schools attended, with dates of graduation, degrees and other scholastic distinctions.” DR 2-102(F), addressed to professional notices, letterheads and signs, provided that:

Nothing contained herein shall prohibit a lawyer from using or permitting the use of, in connection with his name, an earned degree or title derived therefrom indicating his training in the law.

Committees construing these new provisions withdrew their earlier opinions prohibiting the use of degrees and opined that, after the effective date of the Code, “an earned law degree . . . may be listed following a lawyer’s name on professional cards, announcements, letterheads, etc.” N.Y. City 876 (1971). Accord, ABA Inf. 1151 (1969); N.Y. State 105(a) (1969). This Committee is aware of no opinions during this period addressing the use of honorary degrees or distinctions, or whether such degrees would fall within the allowance for the use of “earned degrees.”

The rules in the Code relating to publicity and advertising were substantially affected by amendments in 1978. At that time, both DR 2-101(B)(5) and DR 2-102(F) as set forth above were deleted. The amended Code contained one provision relating to the listing of degrees and distinctions, DR 2-101(C)(1), which remains in the Code to this day. DR 2-101(C)(1) provides, in pertinent part, that in any advertising or publicity “it is proper to include information . . . as to education, degrees and other scholastic distinctions….”

Under this latest Code provision, committees have opined that it is proper for a lawyer to list on a letterhead both degrees and distinctions in law, see, e.g. Philadelphia 86-7; Rhode Island 93-61, and in other fields of study. See, e.g., Alabama 87-60 (engineer can list “P.E.”); New Jersey 589 (1986) (CPA); Philadelphia 86-171, 172 (physician); New Hampshire 1992-93/8 (1993) (engineer); Ohio 93-1, 94-3 (lawyer can list degrees in other fields); South Carolina 93-10 (M.D.). This Committee has stated that the statement on a law firm’s letterhead that a (non-lawyer) patent agent has a Ph.D degree is “ethically proper if accurate.” N.Y. City 82-19.

While this Committee is unaware of reported ethics opinions applying the standard of DR 2-101(C)(1) to honorary degrees, several committees have, in their opinions, specifically referred to the degrees or distinctions allowed to be listed as being “earned degrees.” Michigan CI-1012 (1984) (lawyer may include designation that indicates an earned degree, so long as information is not false); Texas 418 (1984) (lawyer may include list of degrees earned); Iowa 92-93 (1993) (earned licenses and degrees may appear). The New York State Bar Association, in an opinion issued after the latest amendments to the Code on this topic, expressly concluded that the requirement that a degree be “earned” remains in effect:

The provisions of DR 2-101(C)(1), as recently amended, permit a lawyer to publicize his “education, degrees and other scholastic distinctions.” Although the term “degrees” is unqualified, it is clear that the amended Code intends to perpetuate the concept of an “earned degree” contained in former subdivision (F) of DR 2-101, which subdivision was repealed in this State along with the general revision of the Canon 2 Disciplinary Rules relating to lawyer advertising….

N.Y. State 488 (1978) (lawyer cannot list both LL.B. and replacement J.D. degrees, as only one was “earned”). Under this construction, it could be argued that the listing of an honorary degree would be improper in that it is not an “earned” degree.

This Committee, however, does not agree with the conclusion in N.Y. State 488 that the requirement that a degree be “earned” be read into a Code provision where it is not present. While one of the predecessor provisions of the present Code provision, former DR 2-102(F), contained such a requirement that a degree be “earned,” the other predecessor, DR 2-101(B)(5), did not. Furthermore, former DR 2-102(F) provided only for the listing of an “earned degree . . . indicating [a lawyer’s] training in the law”, while it is the clear consensus of contemporaneous committee opinions (including this Committee’s conclusion in N.Y. City 82-19) that degrees in fields unrelated to law may now be listed under DR 2-101(C). We see no reason why the “earned” qualification of former DR 2-102(F) should be carried over into present DR 2-101(C).

As such, there is no blanket prohibition against the listing on a lawyer’s letterhead of an honorary degree or distinction in the law or another field. However, any listing pursuant to DR 2-101(C) must also meet the qualifications of DR 2-101(A) and (B) that the communication not be misleading or given to self-laudation. The listing or reference to an honorary degree, as with any degree, would be ethically proper only “if accurate.” N.Y. City 82-19 (1982). The nature of honorary degrees, fellowships and similar distinctions requires that particular care be taken to ensure that their listing be in a precise manner that will not, either by affirmative statement or by omission, be misleading.

CONCLUSION

Subject to the caveats set forth in the foregoing opinion, the question is answered in the affirmative.