Can a Michigan lawyer who is a former judge advertise that prior judicial service in print and video ads for the law firm?

Plain-English summary

A lawyer asked whether he could publish his status as a retired district judge of thirty years in print and video advertising for the private law firm where he now worked. The Committee analyzed the question under MRPC 7.1, which permits public communications that are not false, fraudulent, misleading, or deceptive, and bars material misrepresentations, statements likely to create an unjustified expectation about results, and unsubstantiated comparisons.

The Committee found the lawyer's statement about his former experience true and not a comparison to other lawyers, leaving the question whether identifying prior judicial experience was likely to create an unjustified expectation about results or imply results achieved by improper means. The Committee concluded that a truthful statement of prior judicial experience does not by itself create an unjustified expectation or imply improper means.

In reaching that conclusion, the Committee distinguished RI-327, which addressed a former judge's wish to keep using the title "Honorable" in his firm name and on letterhead; that title could mislead by suggesting the former judge retained judicial powers. By contrast, a statement of an indisputable credential, such as "District Judge for __th District, 1980-2010," is not misleading. The opinion held that a lawyer may make a truthful statement referring to a past judicial position, including the years held, and that any language beyond identifying the position and years must also comply with all requirements of MRPC 7.1.

In practice

Under this opinion, a Michigan lawyer who formerly served as a judge may state that prior judicial service, including the position and the years held, in print and video advertising, so long as the communication otherwise complies with MRPC 7.1. The opinion draws a line between identifying the credential factually (for example, the court and the dates of service) and language that goes further; any added language, like the standalone honorific "Honorable" addressed in RI-327, must independently satisfy MRPC 7.1's bars on misleading statements and unjustified expectations.

Common questions

Q: Can a former judge advertise prior judicial service as a lawyer?

A: Per the opinion, yes. The Committee concluded a truthful statement of a past judicial position, including the years held, does not by itself create an unjustified expectation about results or imply improper means, so it is permitted under MRPC 7.1.

Q: How should the credential be stated?

A: The opinion approved factual identification of the position and dates, giving "District Judge for __th District, 1980-2010" as a non-misleading example.

Q: Can a former judge keep using the title "Honorable" in the firm name?

A: The opinion distinguished RI-327, which concluded that continued use of "Honorable" could mislead by implying the former judge retained judicial powers, and treated that situation differently from a factual statement of prior service.

Background and rules framework

The opinion interprets MRPC 7.1 (Communications Concerning a Lawyer's Services; the Model Rule 7.1 counterpart), applying its bars on material misrepresentations, statements likely to create unjustified expectations about results, and unsubstantiated comparisons. The Committee distinguished RI-327 (use of the title "Honorable") and noted that statements in CI-850 contrary to this opinion are invalid.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / MRPC 7.1 (communications concerning a lawyer's services)

Other opinions cited:

• RI-327: use of the title "Honorable" by a former judge in a firm name and letterhead
• CI-850: earlier opinion, to the extent contrary, invalid

See also

• Mich Ethics Op. RI-341: Advertising a Super Lawyer Listing
• Mich Ethics Op. RI-276: Internet and Email Advertising
• Mich Ethics Op. RI-90: Retired Shareholder's Name in Firm Name
• Mich Ethics Op. RI-246: "Law Offices" on a Solo's Letterhead

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1231&Type=6

Original opinion text

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

RI-362

NOTE: MRPC 7.1 was amended effective January 1, 2019, to include the following language: "Except as otherwise provided in this rule, a lawyer who is a retired or former justice, judge, referee, or magistrate may use the title ("justice," "judge," "referee," or "magistrate") only when the title is preceded by the word "retired" or "former." A justice, judge, referee, or magistrate who is removed from office or terminated on grounds of misconduct is prohibited from using the title."

May 3, 2013

SYLLABUS

A lawyer who is a former judge ethically may make a truthful statement referring to a past judicial position, including years the position was held, in communications subject to MRPC 7.1. Any language beyond identification of the position held and the years during which the position was held must also comply with all of the requirements of MRPC 7.1.

References: MRPC 7.1; RI-327.

TEXT

A lawyer asks whether he may publish his status as a retired district judge of thirty years in print and video advertising for the private law firm for which he now works.

Michigan Rule of Professional Conduct (MRPC) 7.1 acknowledges a lawyer's ability to "use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive" and proscribes communications that:

• contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not misleading;

• [are] . . . likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

• compare the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated.

While the lawyer's statement about his former experience is true and does not compare the lawyer's services to another lawyer's services, a question remains as to whether identifying prior judicial experience is "likely to create an unjustified expectation about results the lawyer can achieve" or "state[s] or impl[ies] that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law."

The Committee believes that a truthful statement of the lawyer's prior judicial experience does not in and of itself create an unjustified expectation about the results the lawyer can achieve; nor does it state or imply that the lawyer can achieve results by means that violate the MRPC or other law.

In reaching this conclusion, the Committee distinguishes this inquiry from the question answered in Informal Ethics Opinion RI-327 (Sep. 21, 2001), which discussed a former judge's desire to continue to use the title "Honorable" before his name both in the name of his law firm and on firm letterhead. The Committee concluded that usage of the term "Honorable" could be misleading1 and prompt an individual to believe the former judge could achieve results as a former judge that another lawyer could not, thereby implicating MRPC 7.1(b). By contrast, a statement that expresses what is indisputably a credential of the lawyer—such as, District Judge for __th District, 1980-2010—is not misleading.2

Accordingly, a lawyer ethically may make a truthful statement referring to a past judicial position, including years the position was held, in communications subject to MRPC 7.1. Any language beyond identification of the position held and the years during which the position was held must also comply with all of the requirements of MRPC 7.1.

1 The Committee noted that a point of confusion might be a lack of understanding that a retired judge in private practice is prohibited from sitting on assignment and, conversely, a retired judge who sits on assignment is prohibited from engaging in the practice of law. Were individuals in both circumstances to use the title "Honorable," an individual could easily be confused about whether a retired judge who practices law nonetheless retains some powers or abilities as a judge.

2 Any statements in Informal Ethics Opinion CI-850 (May 21, 1983), decided under the former Michigan Code of Professional Responsibility, contrary to this Opinion are invalid.