Can a Mississippi law firm list a non-lawyer consultant, such as an outside engineer, on its letterhead?

Plain-English summary

The Committee addressed a firm practicing in real property and environmental law that had a professional engineer under contract. The engineer was not a lawyer, was not housed in the firm's offices, shared no fees, and worked as an independent contractor. The firm wanted to carry the consultant's name on its letterhead, set apart from the attorneys, with a disclaimer that he was not a member of any bar.

The opinion applied Mississippi Rule of Professional Conduct 7.1, which provides that a lawyer may not make a misleading communication about the lawyer or the lawyer's services. The opinion reasoned that adding a non-lawyer consultant to the letterhead would generate an expectation of certain results, because non-legal training is not directly transferable to legal ability, and an attorney must be careful in a public communication not to mislead the public into thinking otherwise. The opinion also stated the attorney must avoid using a non-law business or profession as a "feeder" or source of indirect solicitation.

The opinion further reasoned that because the consultant is a non-lawyer independent contractor, nothing prevents him from consulting for several firms, corporations, businesses, or individuals at the same time, which from the firm's and the Bar's perspective could readily give rise to potential conflicts of interest and confidentiality problems. The opinion concluded the firm may not list the non-lawyer engineering consultant on its letterhead.

In practice

The opinion holds that, under Mississippi Rule 7.1, a firm may not place the name of a non-lawyer consultant who is an outside independent contractor on its letterhead, even with a disclaimer that the consultant is not a bar member. Per the opinion, the analysis turns on the misleading impression that a non-lawyer's listing creates about legal ability, on the risk that the consulting relationship serves as a feeder for indirect solicitation, and on the conflict and confidentiality exposure created by a contractor who works for many clients at once.

Common questions

Q: Can a law firm put a non-lawyer consultant's name on its letterhead?

A: The opinion concluded no, where the consultant is a non-lawyer independent contractor. Listing him would suggest legal ability the non-legal training does not provide and would risk misleading the public under Rule 7.1.

Q: Does a disclaimer that the consultant is not a bar member cure the problem?

A: The firm proposed exactly that, and the opinion still concluded the listing was not permitted, citing the misleading impression, the indirect-solicitation concern, and the conflict and confidentiality risks rather than treating the disclaimer as sufficient.

Q: Why does the consultant's independent-contractor status matter?

A: Per the opinion, because an independent contractor may consult for many firms and clients simultaneously, which could readily give rise to potential conflicts of interest and confidentiality problems for the firm.

Background and rules framework

The opinion interprets Mississippi Rule of Professional Conduct 7.1 (cf. Model Rule 7.1), which governs misleading communications about a lawyer or the lawyer's services. The opinion described "misleading" as having a likelihood of creating an unjustified expectation about the results the lawyer can achieve, and applied that standard to a non-lawyer's name on firm letterhead.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 7.1 (misleading communications about a lawyer or the lawyer's services) (cf. Model Rule 7.1).

See also

• MS Bar Ethics Op. 181: One Combined Firm Letterhead
• MS Bar Ethics Op. 198: 'Of Counsel' and 'Tax Counsel' on Letterhead
• MS Bar Ethics Op. 180: Firms 'Of Counsel' to Each Other

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/179/
• Original PDF: https://www.msbar.org/media/1052/et_op_179-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 179

OF THE MISSISSIPPI BAR

RENDERED December 07, 1990

AMENDED April 06, 2013

FIRM LETTERHEAD - A law firm may not include the name of an environmental consultant on its firm letterhead when the consultant is not a lawyer and is an independent contractor rather than an employee of the firm.

The Ethics Committee has been asked to render an opinion on the following facts:

A law firm has a practice which primarily focuses on real property transactions. In addition, the firm is engaged in the practice of environmental law, both as to real property and regulatory matters. The firm has under contract a professional engineer who is not a lawyer and who is not housed in the offices of the law firm. No fees are shared with the consultant who operates under a contract with the firm. The firm would like to carry the name of the non-lawyer consultant on its letterhead with a disclaimer indicating that he is not a member of any bar. His name would be placed on the letterhead separate and apart from the attorneys practicing with the firm

Mississippi Rule of Professional Conduct 7.1 states in pertinent part that "A lawyer may not make a . . . misleading communication about the lawyer or the lawyers services." "Misleading" is defined as having a likelihood of creating an unjustified expectation about the results that the lawyer can achieve. To allow the addition of a non-lawyer consultant to the letterhead of the law firm would generate an expectation of certain results by the attorneys. Non-legal training is not directly transferable to legal ability and an attorney must be cautious in a pubic communication not to mislead the public into so thinking. In addition, the attorney must avoid the use of a non-law business or profession as a "feeder" or source of indirect solicitation.

Since the consultant is a non-lawyer and is an independent contractor, there is nothing to prohibit his becoming a consultant to several law firms, corporations, businesses or individuals simultaneously. This, from the law firm's perspective and, thus, from the perspective of the Mississippi State Bar, could very easily give rise to potential conflicts of interest and confidentiality problems.

Therefore, the law firm may not list the name of the non-lawyer engineering consultant on its letterhead.