Can a law firm's letterhead identify an of-counsel lawyer as a retired Superior Court judge?

Plain-English summary

A retired Superior Court judge became "of counsel" to a law firm. The firm asked whether its letterhead could identify him as "Judge of the Superior Court, Retired."

The opinion explained that under the former Code of Professional Responsibility, which governed until February 1, 1985, the designation would plainly have been prohibited: former DR 2-102(A)(4) listed the permissible contents of a letterhead, and a lawyer's prior status as a judge was not among them. Since February 1, 1985, however, the question is governed by ER 7.5 and ER 7.1.

The opinion concluded the statement was permissible. It analyzed the three prohibitions in ER 7.1 and found only the bar on communications that "create an unjustified expectation about results" potentially relevant. The statement that the lawyer is a retired Superior Court judge is true and does not compare his services to others. While the public might assume a former judge has influence with the current bench, the committee concluded that possibility alone did not make the letterhead false or misleading, noting that ER 7.2 allows truthful advertising about a lawyer's qualifications and experience. The information could therefore be included on the letterhead under ER 7.5.

Currency note

This opinion was issued in 1987, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm list an of-counsel lawyer as a retired judge on its letterhead?

A: Yes. The opinion concluded the true statement that the lawyer is a retired Superior Court judge is not false or misleading under ER 7.1 and may appear on the letterhead under ER 7.5.

Q: Would the former Code have allowed it?

A: No. The opinion explained that former DR 2-102(A)(4) listed the permissible letterhead contents and did not include a lawyer's prior judicial status, so the designation would have been prohibited before February 1, 1985.

Q: Does the chance that clients assume a former judge has influence make it misleading?

A: The opinion concluded that possibility alone did not turn the truthful statement into a false or misleading communication under ER 7.1.

Background and rules framework

The opinion applied ER 7.5 (Model Rule 7.5), which bars a firm name, letterhead, or professional designation that violates ER 7.1, and ER 7.1 (Model Rule 7.1), which prohibits false or misleading communications, including statements likely to create unjustified expectations about results. It contrasted these with the former Code's DR 2-102(A)(4) and noted ER 7.2's allowance of truthful advertising about qualifications.

Citations and references

Rules of Professional Conduct:

• ER 7.1 / Model Rule 7.1 (false or misleading communications)
• ER 7.5 / Model Rule 7.5 (firm names and letterheads)

See also

• AZ Ethics Op. 85-01: Firm-to-Firm "Of Counsel" Letterhead
• AZ Ethics Op. 86-10: Interstate Partnership and Joint Letterhead
• AZ Ethics Op. 12-02: False or Misleading Communications

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=550

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

1/1987

Law firm may indicate that attorney becoming "of counsel" is a retired Judge.

FACTS

Attorney X, a retired judge of the Superior Court, has become "of counsel” to Law Firm Y.

QUESTION

May Law Firm Y's letterhead indicate that Attorney X is “Judge of the Superior Court, Retired?”

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services.

ER 7.5. Firm Names and Letterheads.

OPINION

Under the Code of Professional Responsibility, which governed Arizona attorneys' ethical obligations until February 1, 1985, Attorney X would plainly have been prohibited from indicating his status as a retired judge of the Superior Court on the firm letterhead. Former DR 2-102(A)(4) provided that only the following sort of letterhead was permissible:

“A letterhead of a lawyer identifying him by name and as a lawyer and giving his addresses, telephone numbers, the name of his law firm and any information permitted under DR 2-105. The letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated ‘Of Counsel' on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. A lawyer or law firm may be designated as 'General Counsel' or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client. The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.”

DR 2-105 simply provided that lawyers specializing or limiting their practices could so indicate in various forms of communications to clients. Since information about the lawyer’s former status as a judge was not included within the matters listed in either DR 2-102(A ) (4 ) or DR 2-105, it was not ethically permissible to include such information on a letterhead.

However, since February 1, 1985, the issue is governed by ER 7.5 of the Rules of Professional Conduct. ER 7.5(a) provides that

"A lawyer shall not use a firm name, letterhead, or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice."

ER 7.1 provides as follows:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(c) compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated."

Of the three proscriptions in ER 7.1, only the one in subsection (b) would appear to have any application to the case at hand. The communication at issue, i.e., that X is a retired Superior Court judge, is plainly true, and does not compare his services to those of others. Thus, unless the communication can be said to "create an unjustified expectation about results the lawyer can achieve," it does not seem to fall within the proscription of ER 7.1.

The comment to ER 7.1 explicitly discusses the sort of information falling within the prohibition of subsection (b):

“The prohibition in paragraph (b) of statements that may create 'unjustified expectations' would ordinarily preclude advertisements about results obtained on behalf of a client, such as the amount of a damage award or the lawyer's record in obtaining favorable verdicts, and advertisements containing client endorsements. Such information may create the unjustified expectation that similar results can be obtained for others without reference to the specific factual and legal circumstances."

While the comment to ER 7.1 does not purport to be an exclusive listing of information that might fall afoul of the prohibition of paragraph (b), it plainly describes a communication far different from the one at hand. X simply wishes to list on the firm's letterhead a significant fact concerning his prior professional experience. While it is possible that clients, or the public at large, may unjustifiably assume that a former judge of the Superior Court has undue influence with the current members of that bench, we can hardly conclude that this possibility, taken alone, turns the letterhead into a "false and misleading" communication within the purview of ER 7.1. Indeed, since ER 7.2 would plainly seem to allow attorneys in general to engage in truthful advertising concerning their professional qualifications and experience, we would be hard-pressed to conclude that judicial experience is somehow so special in its nature as to constitute a subject forbidden from discussion.

In short, we conclude that the information concerning X's experience, without more, does not constitute a "false or misleading communication" within the prohibition of ER 7.1, and therefore may be included on the letterhead under ER 7.5.

© State Bar of Arizona 1987