NYCLA COMMITTEE ON PROFESSIONAL ETHICS FORMAL OPINION

No. 727

 

TOPIC:

 

Publicity; Advertising; Former Judge

 

DIGEST:

 

Law firm may indicate lawyers’ former judicial positions on letterhead.

 

CODE:

 

DR 2-101, 9-101

 

QUESTION:

 

May a law firm indicate on its letterhead that a lawyer “of counsel” to the firm is a retired judge?

 

ANSWER:

 

Yes, so long as such a representation is truthful, not misleading, and does not suggest that the firm has improper influence over a tribunal, legislative body or public official.

 

DR 2-101(C)(1) states: “It is proper to include information [in advertising] . . . as to . . . public offices and teaching positions held,” so long as such information is proper under DR 2-101(A) and (B). These sections prohibit misleading or untruthful statements, as well as puffery, self-laudation, claims regarding the quality of the lawyers’ legal services, or claims that cannot be measured or verified. A truthful indication that a retired judge is of counsel to the firm does not violate these provisions. Accordingly, we agree with the other two ethics panels in New York that have found such letterhead and other advertising proper under the Code. N.Y. State Bar Op. 637; Nassau Cty. Op. 91-4.

 

However, we agree also with the concern of the New York State Bar: “we caution that there might circumstances under which a representation regarding a lawyer’s former judgeship may lead a client to infer that the lawyer could improperly influence a court.” Such an implication would be improper under DR 9-101(C). But “the mere listing on letterhead of a lawyer’s former judicial position would not reasonably warrant such an influence.” Id. In consequence, inquirer’s letterhead is permissible.