Can a lawyer who is on inactive status in another state still say on her letterhead that she is 'also admitted' there?

Plain-English summary

Opinion 00-02 addressed whether a Utah lawyer may state on her letterhead that she is "also admitted" in another state when she is on inactive status there. The Committee concluded that a lawyer on inactive status may not communicate that she is "admitted" in the state unless she affirmatively discloses the inactive status, or she reasonably concludes the communication would not be materially misleading under all the circumstances, including the time and requirements involved in transferring from inactive to active status. The lawyer must also comply with any applicable requirements of the other state concerning inactive lawyers and must guard against engaging in the unauthorized practice of law there.

The Committee analyzed the question under Rule 7.1, which bars false or misleading communications about a lawyer or the lawyer's services, including the requirement that a statement not omit a fact necessary to keep it from being materially misleading as a whole. Citing Bates v. State Bar of Arizona and its progeny, the Committee acknowledged that truthful communication about legal services is protected commercial speech, and that a lawyer admitted in more than one jurisdiction may make that fact known. The Committee reasoned that stating one is "admitted" implies being authorized and available to practice in that jurisdiction, so saying so while on inactive status, without more, could mislead and might violate Rule 7.1.

The Committee declined to adopt a per se rule that such a statement is always materially misleading, holding instead that materiality must be judged on the facts of each statement. The preferred course is to disclose the inactive status. A lawyer who omits that reference acts ethically only if she is (i) ready and willing to transfer to active status as needed to represent a client properly and (ii) actually able to regain active status on a prompt, efficient, and reasonable basis. Because the ease of reactivation varies by state (some allow it on request and a nominal fee; others require reapplication, additional education, significant fees, or a deliberative review), omission is not materially misleading where reactivation is essentially ministerial, but disclosure is required where reactivation is uncertain or burdensome.

Currency note

This opinion was issued in 2000, before the Utah State Bar's adoption of the 2005 revisions to the Rules of Professional Conduct (the Ethics 2000-based amendments approved by the Utah Supreme Court on September 29, 2005). 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 lawyer list "also admitted in [State]" if she is inactive there?

A: Only with care. The opinion concluded that a lawyer on inactive status may not communicate that she is "admitted" in a state unless she discloses the inactive status or reasonably concludes the omission would not be materially misleading under all the circumstances.

Q: Is omitting the inactive status automatically a violation?

A: No. The opinion declined to adopt a per se rule, holding that whether a statement is materially misleading must be judged on the facts of each statement, including how quickly and easily the lawyer could regain active status.

Q: When is it acceptable to leave out the inactive-status disclosure?

A: When reactivation is essentially ministerial. The opinion stated that omission is not materially misleading where the lawyer is entitled to move to active status through simple actions and only ministerial steps by the licensing authority; where reactivation is uncertain or burdensome, disclosure is required.

Q: Does the lawyer have other duties beyond the letterhead question?

A: Yes. The opinion stated the lawyer must comply with the other state's requirements for inactive lawyers and must refrain from engaging in the unauthorized practice of law there unless and until she regains active status.

Background and rules framework

The opinion interpreted Utah Rule of Professional Conduct 7.1 (communications concerning a lawyer's services, Model Rule 7.1), under which a communication is false or misleading if it contains a material misrepresentation or omits a fact necessary to make the statement, as a whole, not materially misleading. It also referenced Rule 7.5 (firm names and letterheads, Model Rule 7.5), which prohibits letterhead that violates Rule 7.1 and requires affirmative indication of jurisdictional limitations. The analysis turned on Rule 7.1's "materiality" standard and its requirement of a caveat or explanation when a statement would otherwise be misleading, applied to the implication that "admitted" carries about authorization to practice.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Utah Rule 7.1 (communications concerning a lawyer's services)
• Model Rule 7.5 / Utah Rule 7.5(b) (firm names and letterheads; jurisdictional limitations)

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), lawyer advertising as protected commercial speech
• In re R.M.J., 455 U.S. 191 (1982), listing jurisdictions of admission is not misleading on its face
• Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91 (1990), truthful claims of certification
• People v. Newman, 925 P.2d 785 (Colo. 1996), discipline for implying licensure while inactive
• In re Sousa, 915 P.2d 408 (Ore. 1996), misrepresentation of active licensure

Other opinions cited:

• Utah Ethics Advisory Op. 131 (1993); Op. 138 (1994); Op. 108 (1990): truthfulness in lawyer communications
• Ohio Adv. Op. 91-18, 91-1, 96-3: inactive lawyers and letterhead/firm-name listings

See also

• Utah Ethics Op. 18-01: Lawyer-Legislator's Name in a Firm Name
• ABA Formal Op. 95-391: Former Judge Using the Title "Judge"
• ABA Formal Op. 504: Choice of Law Under Rule 8.5

Source

• Landing page: https://www.utahbar.org/ethics-opinions/2000-02/
• Original PDF: https://www.utahbar.org/wp-content/uploads/2022/12/2000-02.pdf

Original opinion text

Reproduced from the official source for research purposes. The two-column PDF has been reassembled into reading order by paragraph, and obvious text-extraction artifacts (glued footnote markers, broken words) have been corrected; the linked source is authoritative.

Utah Ethics Opinions 2000. 00-02. USB EAOC Opinion No. 00-02

Utah State Bar Ethics Advisory Opinion Committee

Opinion No. 00-02 Approved March 9, 2000

Issue: May a Utah lawyer ethically state on her letterhead that she is "also admitted" in another state when she is on inactive status in that state?

Opinion: A lawyer on inactive status in a state may not ethically communicate by means of letterhead or otherwise that the lawyer is "admitted" in the state unless (i) the lawyer also affirmatively discloses the lawyer's inactive status or (ii) the lawyer reasonably concludes that the communication would not be materially misleading under the circumstances as a whole, including the time and requirements involved in transferring from inactive to active status in the state in question. Further, the lawyer must (i) comply with any applicable requirements of the other state concerning inactive lawyers and (ii) guard against engaging in the unauthorized practice of law in the other state.

Analysis: A lawyer's letterhead is a form of public communication (fn1) subject to the requirements of Rule 7.1, which provides in relevant part 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: (a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or (c) Compares the lawyer's services with other lawyers' services, unless the comparison can be factually substantiated. (fn2)

In a series of cases beginning with Bates v. State Bar of Arizona, (fn3) the U.S. Supreme Court has made it clear that public communication concerning a lawyer's services (including any form of advertising) is commercial speech, enjoys First Amendment protection, and can be regulated only to further substantial state interests, and then only in the least restrictive manner possible. (fn4) The cardinal rule concerning all public communication about a lawyer and her services is that the communication not be false or misleading. (fn5) In this regard, Rule 7.1 "captures the essence" of the Court's opinions in Bates and its progeny, and "informs all of Part 7: lawyers have a First Amendment right to communicate truthful information about their services, and potential clients have a right to hear such information, but society has a right to protect against communications that are false and misleading." (fn6)

The three subsections of Rule 7.1 undertake to identify what constitutes permitted and prohibited speech and establish guidelines for the development of a common law of false and misleading communications with respect to legal services. The provision most applicable to the present analysis, Rule 7.1(a), (fn7) not only prohibits statements which contain material misrepresentations, but also requires "a caveat or explanation when a statement would otherwise be misleading." Determining whether a particular communication is misleading requires an examination of the particular circumstances in question. There is no bright-line test for determining what is or is not misleading. (fn8) Rather, "[e]ach statement must be judged on its facts to determine whether it would have that effect and how much explanation is necessary." (fn9)

It is well-established that a lawyer admitted or licensed to practice law in more than one jurisdiction may make that fact known by any form of otherwise permissible communication, including letterhead, business cards, announcements, billing statements, mailings, advertisements, signs and the like. In In re R.M.J., (fn10) the U.S. Supreme Court held that certain rules of the Missouri Supreme Court providing that a lawyer could communicate only certain categories of information, which did not include a category for listing the courts in which the lawyer was admitted to practice, were unconstitutional. In doing so, the Court observed not only that "[s]uch information is not misleading on its face," but that the lawyer in question was licensed to practice in both Illinois and Missouri "is factual and highly relevant information particularly in light of the geography of the region in which the [lawyer] practiced." (fn11)

The R.M.J. court, however, did not deal with the precise issue before this Committee: Is it misleading for a lawyer to state that the lawyer is "admitted" or "licensed" in a jurisdiction when the lawyer is on "inactive status" in that jurisdiction without making any reference or disclosure concerning such status? Before we address this specific question, it is necessary to review and define for purposes of this opinion what is meant by the term "inactive status."

Utah, like other states, has different categories of bar membership, one of which is designated as "inactive." (fn12) Generally, "inactive" refers to a type of bar membership where a lawyer for any number of reasons, may voluntarily be removed from the bar's list of active lawyers and thereby be relieved of some or all of the obligations and burdens relating to active practice. (fn13) Typically, when a lawyer becomes inactive, she is still a member of the bar, (fn14) but she may not practice law in the relevant jurisdiction unless and until she is placed back on active status by the appropriate licensing authority. (fn15)

The limitations arising out of inactive status are significant and the consequences of practicing law where a lawyer is on inactive status are serious. For example, states that have addressed the subject by rule or opinion have concluded that a lawyer on inactive status may not be listed on firm letterhead or in Martindale-Hubbell or similar professional directories, (fn16) or even hold equity in the lawyer's former firm. (fn17) If the lawyer violates the terms of inactive status, she is subject to appropriate disciplinary or other action. For example, if the lawyer were to hold herself out as being "admitted to practice" in the jurisdiction, she would be making a false and misleading statement, and if the lawyer were to practice law in the jurisdiction, she would be engaged in the unauthorized practice of law. (fn18)

Turning now to the specific issue before us, we believe that, when a lawyer states that she is "admitted" in a jurisdiction, she is also implying that she is admitted to practice law in the jurisdiction and is available to do so. (fn19) Thus, if a lawyer communicates that she is admitted in a state when she is on inactive status in the state, there is a potential for a person to misconstrue the ability of the lawyer to represent a client in that state. The lone statement that the lawyer is admitted in a state may technically be truthful, but the implication that the lawyer is authorized to practice law there could be misleading and, without more, might violate Rule 7.1. In circumstances governed by Rule 7.5(b), a lawyer must indicate affirmatively any jurisdictional limitations she may have. (fn20)

Having concluded that it is misleading to communicate (without appropriate disclosure) that a lawyer is admitted when she is on inactive status in a state, the more difficult question is whether the Committee should adopt a bright-line rule and conclude that such a communication would be materially misleading per se, without reference to any facts or circumstances surrounding a particular statement or a particular lawyer's situation. It is troubling that a lawyer may make a statement that she knows or should know could be misleading at the time the statement is made (e.g., when pre-printed letterhead or cards are sent or given to a client or prospective client, or when an advertisement is published) without violating Rule 7.1. (fn21) Nevertheless, we believe that it would be going too far to adopt a per se rule. Again, whether a statement is misleading, especially materially so, is to be judged on the facts of each statement. (fn22) Further, the rule itself suggests that a fact-oriented analysis is necessary and appropriate, since it contains a "materiality" standard and provides that whether an omission of fact makes a statement materially misleading must be "considered as a whole." (fn23)

If a lawyer desires to communicate that she is admitted in a jurisdiction where she is on inactive status, (fn24) the preferred course of action would be for the attorney to disclose her inactive status in the communication and, as appropriate, inform the client or prospective client of the meaning and consequences of the status. (fn25) Although such a disclosure may be awkward or unwieldy on letterhead, professional cards and the like, it would reduce, or eliminate the chance that the statement concerning admission elsewhere would misinform, mislead or violate Rule 7.1. (fn26)

To the extent that a lawyer is on inactive status and chooses to omit reference to that status, the Committee concludes that the lawyer may do so ethically only if the lawyer is (i) ready and willing, if engaged by the client, to transfer to active status as may be necessary to represent properly the interests of a client and (ii) actually able to regain active status on a prompt, efficient and reasonable basis. (fn27) The ability of a lawyer to transfer from inactive to active status on a rapid and relatively effortless basis, however, varies widely from state to state.

For example, in some states a lawyer has the right to transfer from inactive to active status by simply requesting the change of status, providing a minimum amount of basic information, e.g., "good standing" and continuing legal education information, and paying a nominal fee. (fn28) In such circumstances, it would not be materially misleading to omit reference to inactive status because the lawyer essentially is entitled to move to active status, and doing so would require relatively simple actions on the lawyer's part and only ministerial actions on the part of the licensing authority.

In other jurisdictions, however, regaining active status may not be so quick and easy. For example, some states require that a lawyer effectively reapply to practice law, undertake additional educational activities or pay significant fees and dues. In some states, a review and deliberate decision-making process by the licensing authority may be required. (fn29) In such circumstances or any other circumstances where a lawyer cannot be assured of a prompt, certain, efficient and economically nominal reactivation, or where there are any other significant barriers to re-entry, the Committee believes that it would be materially misleading for a lawyer not to provide appropriate disclosure.

Conclusion: Whether a lawyer may ethically communicate that the lawyer is "also admitted" in another state when the lawyer is on inactive status in that state depends on whether the communication is materially misleading within the meaning of Rule 7.1. The Committee believes that a communication of the fact that a lawyer is admitted in a state implies that the lawyer is authorized and available to practice law in that state. Accordingly, the lawyer must either disclose the lawyer's inactive status or reasonably determine that the lack of such disclosure is not materially misleading under the totality of the circumstances, including the time, effort and cost involved in the lawyer's transferring from inactive to active status. A lawyer on inactive status who desires to communicate the bare fact of "admission" to the bar of another state must be fully acquainted with any requirements and limitations imposed upon her by the laws and rules of the other state by reason of such status, and the lawyer must refrain from taking any actions that would constitute engaging in the unauthorized practice of law in the other state unless and until she regains active status in the state.

Rule Cited: 7.1