2010 Formal Ethics Opinion 11

January 21, 2011

Letterhead Listing Membership in Organization with Self-Laudatory Name
 

Opinion rules that a lawyer may list membership in Million Dollar Advocates Forum, or another organization with a self-laudatory name, on his letterhead only if a disclaimer of similar results and information about the criteria for membership also appears on the letterhead.

 

Inquiry #1:

 

2003 FEO 3 considered whether a lawyer may advertise membership in the Million Dollar Advocates Forum. The opinion explained that this membership information may create unjustified expectations about the results the lawyer can achieve, such as the expectation that the lawyer obtains a million-dollar verdict in every case. Along with requirements relative to the legitimacy of the membership credential, the opinion stated that the communication must include both a disclaimer providing notice that similar results are not guaranteed, that each case is different and must be evaluated separately, and an explanation of the standards for membership or information on how to obtain the membership standards in order for the communication to avoid violating Rule 7.1(a)(2). Attorney A wants to list membership in the Million Dollar Advocates Forum on his letterhead.

 

Is letterhead a communication about the lawyer’s services?

 

Opinion #1:

 

Yes, letterhead is a communication about the lawyer’s services. Letterhead contains a myriad of information. The name of the lawyer or law firm on the letterhead communicates by whom or through what entity services are being offered and identifies the nature of those services as legal services. Inclusion of the name of a founding lawyer who has passed away communicates history about and affiliations of the law firm. Listing memberships or certifications of a lawyer on letterhead communicates information about the lawyer’s focus, activities, and accomplishments. The address communicates information about the community in which the lawyer or law firm offers services. Similarly, information about the states in which the firm lawyers are licensed helps a consumer to determine whether a lawyer may provide legal services in a particular jurisdiction. Accordingly, Rule 7.5(a) requires letterhead to comply with Rule 7.1, the rule on communications concerning a lawyer’s services. This is consistent with the approach taken by the United States Supreme Court in cases in which the Supreme Court analyzed letterhead as commercial speech. See, e.g., Ibanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 512 U.S. 136 (1994); Peel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91 (1990).

 

Inquiry #2:

 

May Attorney A list membership in the Million Dollar Advocates Forum on letterhead sent to prospective clients? Is a disclaimer required?

 

Opinion #2:

 

Yes, Attorney A may list membership in an organization with a self-laudatory name or designation, such as Million Dollar Advocates Forum, on letterhead sent to prospective clients if the following conditions are satisfied: (1) the organization must satisfy the requirements set forth in 2003 FEO 3 and 2007 FEO 14; (2) the letter must contain information on how to obtain the membership standards for the Million Dollar Advocates Forum; and (3) the letter must include a disclaimer to avoid creating unjustified expectations about the results the lawyer can achieve. The disclaimer must at a minimum explain that each case is different, each case must be evaluated separately, and that no representation is made that similar results will be achieved in the recipient’s case.

 

Inquiry 3:

 

May Attorney A list membership in the Million Dollar Advocates Forum on letterhead used generally in the course of Attorney A’s legal practice—letterhead not sent to prospective clients but instead sent to existing clients, unrepresented opposing parties, other laypersons, lawyers, and/or judges? Is a disclaimer required?

 

Opinion 3:

 

Yes, Attorney A may list membership in the Million Dollar Advocates Forum on such letterhead, provided the conditions and disclaimer requirement set out in Opinion #2 are satisfied. A letter communicates to all who see it, not just the intended recipient. Accordingly, letterhead must be accurate and not misleading, regardless of the intended recipient.1 Prospective clients are not the only individuals at risk for being misled by information that creates unjustified expectations, such as a claim of membership in the Million Dollar Advocates Forum or other self-laudatory organization. Current clients are at risk, particularly those who retain the lawyer without having seen a prospective client letter that includes the disclaimer. Unrepresented opposing parties are at risk of being unduly influenced by the membership information, absent explanation. Furthermore, the lawyer sending a letter cannot guarantee that only the intended recipient will see the letter. Even if an intended recipient might have sufficient legal education and training to evaluate the claimed credential and therefore might not be susceptible to unjustified expectations, others seeing the letter—for example, nonlawyer assistants—may not. Providing the additional information set out in Opinion #2 and as previously required in 2003 FEO 3 and 2007 FEO 14 will ameliorate any risk of creation of unjustified expectations from inclusion of membership information in a self-laudatory organization on letterhead.

 

Endnote

 

1. This opinion is consistent with the manner in which the United States Supreme Court addressed letterhead with certification information in the case of Peel, infra. The letter at the genesis of that case was a letter sent to the Attorney Registration and Disciplinary Commission of Illinois (the body that investigates and prosecutes cases of lawyer misconduct in Illinois). The Supreme Court’s discussion of whether the letterhead was misleading did not limit its consideration to whether the letterhead was misleading to the intended recipient—the commission—but analyzed generally whether the letterhead was misleading.
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