Can a lawyer let a non-law business she co-owns list 'Esq.' after her name on the company letterhead and promotional materials?

Plain-English summary

A lawyer was a shareholder in a Maine business corporation (not a professional corporation) whose letterhead would list a non-lawyer shareholder and the lawyer, with "Esq." after the lawyer's name. The corporation planned to offer "consulting" services for marketing customers' real estate. The lawyer asked whether the Bar Rules permitted her to use "Esq." on the corporation's letterhead and other promotional literature.

The Commission assumed, since it had not been told otherwise, that the corporation's services would not include activities that would be legal services if performed by lawyers. On that assumption the only question was whether the designation violated Rule 3.9, which regulated advertising to a limited degree by prohibiting false, fraudulent, misleading, or deceptive statements. The Commission concluded the "Esq." designation was neither false nor fraudulent because the person is in fact an attorney; and where the corporation offers no legal services, merely publicizing a stockholder as an attorney does not support a conclusion of intent to mislead or deceive, nor that deception would occur. It saw no distinction from letterheads and brochures of charitable and non-profit corporations that identify attorneys on their boards. A single member, disagreeing with the assumption, would have found the lawyer's participation in the organization to violate Rules 3.2(a)(2) and 3.3(e) (citing Opinions 69 and 79), making the question unnecessary to reach.

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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: May a lawyer be identified as "Esq." on the letterhead of a business she co-owns?

A: The opinion concluded yes, where the business does not offer legal services; the truthful designation is not false, fraudulent, misleading, or deceptive under Rule 3.9.

Q: Why isn't using "Esq." on a non-law business misleading?

A: The opinion reasoned that the designation accurately denotes that the person is an attorney, and where the company offers no legal services, publicizing a shareholder's title does not support a conclusion that the public will be deceived about the company's activities.

Q: Did the Commission analogize to any other situation?

A: Yes. The opinion saw no distinction from letterheads and brochures of charitable and non-profit corporations that identify the attorneys serving on their boards of directors or trustees.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.9, which regulated lawyer advertising principally by prohibiting false, fraudulent, misleading, or deceptive statements. That prohibition corresponds to ABA Model Rule 7.1 (communications concerning a lawyer's services must not be false or misleading). The dissenting member would have applied Rules 3.2(a)(2) and 3.3(e) (a lawyer's participation in a business), citing Opinions 69 and 79.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 (false or misleading communications about services)
• Maine Bar Rule 3.9; Rules 3.2(a)(2) and 3.3(e) (cited in the dissent)

Other opinions cited:

• Maine Professional Ethics Commission Opinions 69 and 79 (cited by the dissenting member)

See also

• ABA Formal Op. 90-357: Use of the "Of Counsel" Designation
• CA Bar Op. 1982-66: Law Office Trade Names

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91480

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: November 16, 1988

Question Presented

Attorney Q is a shareholder in a Maine business corporation that is not a professional corporation. The corporation's letterhead will list the non-lawyer shareholder and Attorney Q with the latter including the appellative "Esq." after her name. The corporation apparently will offer "consulting" services with respect to marketing real estate of its customers. The question posed is whether Attorney Q is permitted by the Bar Rules to use "Esq." after her name on the corporation letterhead or any of its other promotional literature.

Opinion

The Commission concludes that the attorney is not prohibited from advertising her title as proposed.

The Commission has not been advised by the inquiring attorney as to the precise scope of the services the corporation will be providing but will assume they do not include activities that, if performed by lawyers, would be considered legal services.[1]

Therefore the only question is whether the proposed designation on the letterhead violates Rule 3.9. This Rule regulates advertising only to a very limited degree; it basically prohibits only false, fraudulent, misleading or deceptive statements. For reasons unnecessary to explore in this opinion the use of the anachronistic title "Esq." after a person's name denotes to the public, at least in this state, that he or she is an attorney at law. Thus the designation cannot be considered either false or fraudulent in this case; the person is an attorney. Where the services the corporation is offering to the public do not include rendering legal services, the mere publicizing of a stockholder as an attorney cannot support a conclusion that there is an intent to mislead or deceive the public as to the activities of the corporation, nor that such deception will occur. The Commission sees no distinction between the identification of a stockholder/director as an attorney in the present case from those letterheads and brochures of charitable and non-profit corporations that similarly identify attorneys on their Board of Directors or Trustees. In either case the mere advertising of the lawyer's title, for whatever prestige value it may hold, does not violate Rule 3.9.

Footnote

[1] One member of the Commission cannot agree with this assumption and would therefore find that since participation by the lawyer in the organization violates Rule 3.2(a)(2) and 3.3(e) (see Opinions 69 and 79) there is no need to address the question raised by this inquiry.