Formal Opinion 1996-2: Announcements; Employment of Non-lawyer

TOPIC: Announcements; Employment of Non-lawyer.

DIGEST: A law firm may issue an announcement regarding its employment of a law student or other nonlawyer provided the announcement makes clear the fact that the person is not a lawyer and is working in a nonlawyer capacity.

CODE: DRs 2-101(A), 2-101(D), 2-102(A), 2-102(A)(2).

QUESTION

May a law firm issue an announcement regarding its employment of a law student or other nonlawyer, so long as the announcement makes clear that the person employed is not a lawyer?

OPINION

A law firm asks whether it may issue an announcement regarding its employment of a law student who assisted the firm will continue to work for the firm during his last year of law school and thereafter. The student has an extensive professional background and significant acquaintances in a field in which the firm practices. As a result, the firm wishes to publicize the law student’s relationship with it. The firm intends to make clear in the announcement that the assistant is still in school and not yet admitted to practice as a lawyer; in addition, the announcement will not purport to solicit business for him.

The relevant section of the Code of Professional Responsibility is DR 2- 102(A)(2), which states:

A lawyer or law firm may use professional cards, professional announcements, office signs, letterheads or similar professional notices or devices, provided the same do not violate any statute or court rule, and are in accordance with DR2-101, including…[a] professional announcement card stating new or changed associations or addresses, change of firm name, or similar matters pertaining to the professional offices of a lawyer or law firm. It may also state biographical data, the names of members of the firm in a continuing line of succession. It shall not state the nature of the practice except as permitted under DR 2-105.

The inquiring law firm, however, wishes to announce the employment of a nonlawyer. DR 2-102(A) therefore does not strictly apply. The question, then, is whether a lawyer may disseminate a formal announcement of the employment of a nonlawyer and, if so, whether the Code of Professional Responsibility provides appropriate guidelines for such notices?

We have found no opinions on this issue from any ethics committees within New York State. Those ethics committees from other states that have addressed the issue of announcements pertaining to nonlawyers are divided:

• Hawaii ruled that a paralegal may be listed on professional notices distributed or mailed by a law firm, provided that the paralegal is clearly identified as such and no misleading statements are made as to his or her status in the firm. Hawaii 78-8-19 (1984).

• A 1980 Wisconsin opinion held that a lawyer could not formally announce that he had hired a paralegal. The Committee reasoned that a paralegal was not authorized to practice law and could only assist a lawyer under a lawyer’s supervision. Because a lawyer’s advertising was limited to the lawyer’s ability to perform legal services, he could not announce the employment of a nonlawyer. Wisconsin E-80-15.

• Three years later however Wisconsin issued a contrary ruling regarding another nonlawyer, and approved an announcement by a law firm that the firm had hired a former official of the state department of revenue as a “technical assistant in the area of state and local taxation.” The announcement was to contain a footnote stating that the person hired was not licensed to practice law. The opinion stated that “[t]he employment of such a lay assistant may be relevant to consumers in making an informed decision regarding the selection of a lawyer and is therefore within the realm of permissible advertising.” Wisconsin E-83-3.

• South Carolina held that a law firm could not send an announcement to lawyers and accountants stating that it had hired a nonlawyer to handle administrative tax matters involving IRS. It deemed such an announcement misleading in that it might have created an unjustified expectation that the employee would handle legal matters as a lawyer and by virtue of prior employment, be able to influence IRS rulings. South Carolina 83-16.

There are many opinions that address related issues, such as whether nonlawyers may be listed on a law firm’s letterhead or issued business cards. Most opinions permit such listings and issuance of business cards as long as they are not false or misleading. Some opinions approve the issuance of business cards but not letterhead listings. Many of the favorable opinions arose from questions involving paralegals and legal assistants. See, e.g., Chicago 92-3(“[a] law firm may supply its paralegals business cards containing the paralegal’s name and non-lawyer position and the firm’s name, address and telephone number, all listed in a manner compatible with the lawyer ethics rules”). See generally ABA/BNA Lawyers Manual on Professional Conduct 81:3007-10 (1995).

We believe that it would be unduly restrictive to prohibit the announcement of the hiring of a nonlawyer employee solely on the grounds of his or her status as a nonlawyer, particularly in light of the broad use of nonlawyer professionals and paraprofessionals today. Law firms now employ a variety of nonlawyers whose employment is intended both to support the practice and to attract business, such as paralegals, marketers, specialists in information technology and scientists of different disciplines.

DR 2-101(D) states that “[a]dvertising and publicity shall be designed to educate the public to an awareness of legal needs and to provide information relevant to the selection of the most appropriate counsel.” Just as the announcement of the employment of a nonlawyer tax expert or audio-visual expert might provide information enabling the public to determine the qualifications of a firm, the hiring of a nonlawyer employee with a particular background might help one decide that a law firm is well suited to handle a particular issue.

Prohibitions and restrictions on announcements of the hiring of nonlawyers have been aimed at assuring that the nonlawyer status of the employee is made clear or preventing lawyers from suggesting that the hiring of the employee is calculated to achieve some improper advantage for the firm and its clients. See DR 2 –101(A). Thus, the Committee concludes that as long as a law firm makes clear in an announcement that the person employed is working in a nonlawyer capacity, an announcement that otherwise conforms with the ethical considerations and sections of the Code would be permissible.

CONCLUSION

The question presented is answered in the affirmative.

Issued: February 26, 1996