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2011 Formal Ethics Opinion 9

July 15, 2011

Use of Letterhead by Person Who is Not Employed or Affiliated with Firm

Opinion rules that a lawyer may not allow a person who is not employed by or affiliated with the lawyer’s firm to use firm letterhead.


Inquiry #1:


May a lawyer allow a person who is not employed by the lawyer’s firm and who is not subject to the supervision or control of any lawyer with the firm to use the firm’s letterhead?


Opinion #1:


No. It is professional misconduct for a lawyer to violate the Rules of Professional Conduct through the acts of another. Rule 8.4(a). The Rules prohibit false or misleading communications by a lawyer about the lawyer or the lawyer's services. Rule 7.1(a). They also prohibit conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). A recipient of a letter on a law firm’s letterhead assumes that the letter was written by a firm lawyer or by an employee or affiliate1 of the firm who is acting under the authority, supervision, and control of a firm lawyer. If a person who is not employed or formally affiliated with the firm sends a letter on firm letterhead, it creates the false impression that the person has the authority to act on behalf of the law firm and is being supervised by a firm lawyer. In the worst case, the recipient may falsely assume that the sender is a lawyer with the firm. A lawyer may not participate actively or passively in this deception. If a lawyer learns that someone who is not employed or affiliated with the firm is using firm letterhead to write to third parties, the lawyer must take steps to stop the misuse of the letterhead.


A lawyer may, however, allow a client to draft a letter to be printed on letterhead if the lawyer reviews and assumes responsibility for the content of the letter by signing it.


Inquiry #2:


A client would like to use the letterhead of his lawyer’s firm for activities that do not constitute the practice of law. For example, when negotiating the terms of a loan with a third party, the client wants to write the terms on the firm letterhead and have the third party sign the document. The client and the lawyer anticipate that the loan will subsequently be closed by the lawyer. May a lawyer allow a client to use his firm’s letterhead in this manner? May a lawyer agree to such use if the lawyer supervises or controls the content of the document?


Opinion #2:


No, because the third party may falsely believe that the client is acting with the authority of the law firm. See Opinion #1. In addition, it may create the false impression that the law firm is verifying or endorsing the transaction.


Endnote


1. A person who is not an employee but who is formally affiliated with a firm, such as a contract lawyer or paralegal, may use firm letterhead if the person is authorized to act on the firm’s behalf and the affiliation is set forth on the letterhead or otherwise in the letter. See, e.g., RPC 126.

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