NEW YORK STATE BAR
ASSOCIATION
Committee on
Professional Ethics
Opinion 1180 (01/17/2020)
Topic: Professional letterheads and emails
Digest: An
attorney may communicate with third parties on a client’s behalf using a
client’s email address with a signature line that includes the client’s logo
and a title indicating that the inquirer is “Corporate Counsel and Chief
Compliance Officer” for the client, provided that the client devotes a
substantial amount of professional time to the client’s representation and
provided that such position and title representations are truthful.
Rules: 7.1(a);
7.5(a)(4)
FACTS
1.
The inquirer, a solo practitioner, serves as outside
counsel to a client company. The
inquirer devotes a substantial amount of professional time to the client’s
affairs. The client has requested, when communicating on the client’s behalf to
third parties, that the inquirer use a client email address with a signature
line that includes the client’s logo and a title indicating that the inquirer
is “Corporate Counsel and Chief Compliance Officer” for the client, a statement
that, we are told, is factually correct.
QUESTION
2.
May an attorney communicate with third parties on a
client’s behalf using a client’s email address with the client’s logo including
a signature line indicating the attorney’s title and position with the client?
OPINION
3.
Rule 7.5(a) of the New York Rules of Professional
Conduct (“Rules”) authorizes attorneys to use “the internet, web sites,
professional announcement cards, office signs, letterhead or similar
professional devices” provided two conditions are satisfied:
4.
Rule 7.5 (a)(4)
also imposes an additional condition with respect to the use of “General
Counsel” or “similar professional reference” on client stationery:
A lawyer or law firm
may be designated as “General Counsel” or by similar professional reference on
stationery of a client if the lawyer or the firm devotes a substantial amount
of professional time in the representation of the client.
5.
Here, it is ethically permissible for the inquirer,
when communicating on behalf of the client, to use the client email’s address, as
proposed, because the attorney does in fact devote a substantial amount of
professional time in the representation of the client, and does in fact serve
the client in the signified positions.
6.
Our analysis warrants two additional comments. First, we see no functional difference
between the application of the safe harbor of Rule 7.5(a)(4) on an attorney’s
use of client letterhead to an attorney’s use of a company email address and
template that includes the company logo.
Second, although we recognize the possibility that an attorney’s
communication on such a template with a signature block indicating that the
attorney is the client’s “Corporate Counsel and Chief Compliance Officer” might
lead a third-party recipient to assume that the attorney is a payroll employee
of the client, and not outside counsel, that does not, in our opinion, raise
any concerns regarding false, deceptive or misleading statements under Rule 7.1. Whether an attorney serves as in-house
counsel or outside counsel, the fiduciary obligation of the lawyer to the
client and the Rules of Professional Conduct that govern that relationship are
the same. Therefore, any misimpression
formed would be irrelevant, having no more significance than if a third party,
for example, mistook a lawyer’s gender based on unfamiliarity with a foreign
name.
CONCLUSION
7.
An attorney may communicate with third parties on a
client’s behalf using a client’s email address with a signature line that
includes the client’s logo and a title indicating that the attorney is
“Corporate Counsel and Chief Compliance Officer” for the client, provided that
the client devotes a substantial amount of professional time to the client’s
representation and provided that such position and title representations are
truthful.
(23-19)
