Opinion 406

Statement of Facts Discussion Conclusion

These issues address questions of communication under Disciplinary Rule 2- 101(A) of the State Bar's Code of Professional Responsibility, effective September 1, 1982. Although the use of a lawyer's letterhead or professional card could raise advertising issues under DR 2-101(B) in some circumstances, such is not the case in these instances. Rather, the issues at hand relate only to information which may be placed on a lawyer's letterhead or professional card, not to information which, being placed on letterhead or card, is then disseminated in some way on the letterhead or card to the general public through the printed or electronic media. For two important advertising cases, see Bates v. State Bar of Arizona, 433 U.S. 350 (1977) and Matter of R.M.J., 455 U.S. 191 (1982).

DR 2-101(A) prohibits a lawyer from making "any false or misleading communication about the lawyer or the lawyer's services." It then enumerates eight instances when a communication might be considered false and misleading. Briefly, those instances are if the communication (1) contains a material misrepresentation or omission, (2) contains a statement of opinion as to the quality of legal services, (3) contains a representation or implication regarding services which cannot be reasonably verified by the public, (4) contains predictions of future success, (5) contains statistical data which cannot be reasonably verified by the public, (6) contains information on past performance which cannot be reasonably verified by the public, (7) contains a testimonial about or endorsement of a lawyer, or (8) can or is likely to create an unjustified expectation about the results a lawyer can achieve. The communications presented in the above three issues do not run afoul of any of the enumerations in DR 2-101(A). As a general matter as well, they are not false or misleading. Therefore, a letterhead or professional card may be used in the ways suggested by the three issues. The answer to all issues is thus yes. See also Ethical Consideration 2-10 for an advisory list of matters includable in advertising.

In connection with letterhead enumerations by law firms regarding lawyers licensed to practice in a state other than Texas, it is well to observe that those law firms should "make clear the jurisdictional limitations" of such lawyers. See, e.g., DR 2-102(C) of the State Bar of Texas Code of Professional Responsibility (as to interstate law firms): cf. Tex. Professional Ethics Comm., Op. 400, 44 Tex.B.J. 801 (1981) (letterheads of multistate law firms). Moreover, the dictates of DR 2-101 of the State Bar of Texas Code of Professional Responsibility should also be closely observed.

As a result of the conclusions in this opinion, it is necessary to overrule Opinion 50 of the Professional Ethics Committee (1952), which held that a lawyer not licensed in Texas could not be listed on the letterhead of a law firm maintaining only one office in one Texas city, and Opinion 291 of the Professional Ethics Committee (1964), which held that a lawyer who was also a CPA could not show the accounting qualification on his letterhead.