Opinion #5. Juropsychotherapist Opinion

Issued by the Professional Ethics Commission

Date Issued: October 17, 1979

Question

A licensed attorney who holds a J.D. degree expects to obtain a master’s degree in counseling and to be certified by the American Association for Marriage and Family Therapists. He hopes to practice as a marriage and family counselor and at the same time practice as a domestic relations attorney.

The Commission has been asked:

Whether the attorney may use the title “doctor,” “when wearing the 'hat' of the mental health professional”; when wearing the 'hat' of the mental health professional";

Whether the attorney may hold himself out to the public as both an attorney and as a marriage/family counselor, using the same stationery, professional card, shingle and books of account for both practices;

Whether the attorney may practice both as such and as a marriage/family counselor “without a conflict.”

The questions suggest that the attorney views his law and counseling practices as different but related aspects of a single occupation. Indeed, in a letter to the Professional Ethics Committee of the Maine State Bar Association, he describes his proposed profession as “juropsychotherapist.”[1]

Opinion

Whether this attorney may use the title “doctor” depends upon whether his counseling training gives him the credentials normally implied by use of that title. He may not style himself “doctor” on the basis of a J.D. degree. Regular use of the title “doctor” is almost exclusively confined to certain health professionals (see 32 M.R.S.A. § 3270) and, to some extent, academics with a Ph.D. degree and clergymen. We think the natural tendency of any lay person hearing the attorney referred to as “doctor” or reading such a title upon his office door or professional card would be to assume that the attorney is also qualified in one of those professions. The inquiring attorney concedes that “(o)bviously, I would be in violation of the canon of ethics if I used it ('doctor') when wearing the hat of a legal professional.” Since he seems to view his future profession as wearing the single “hat” of “juropsychotherapist,” whatever that may be, it is hard to see how the title “doctor” may be used without “wearing the hat of a legal professional.”

Whether the attorney’s master degree in counseling will entitle him to use the title “doctor” is a question normally outside the scope of this Committee’s jurisdiction. Given the special circumstances of the present case, however, the Committee notes that 32 M.R.S.A. § 3270 appears to control use of the title in Maine and to prohibit its use by a person whose only qualification is a master’s degree in counseling.

There is no reason why the attorney may not practice as both a lawyer and a family and marriage counselor, in the same office if that is his intention, and if he is otherwise entitled to practice as a family and marriage counselor. Since the Committee does not pass on questions of law, we express no opinion whether the training the attorney proposes to obtain and the certificate to which he aspires will allow him to use the words “family and marriage counselor” to describe himself in Maine. He may likewise now use the same stationery, professional card, shingle and books of account for both occupations, and his advertising, if any, may identify both professions, as long as the identifying information and accompanying representations concerning his professional activities are not misleading or deceptive. (Rule 3 of the Maine Bar Rules contains no counterpart to DR 2‑102(E) of the Maine State Bar Association Code of Professional Responsibility, which prohibited such co‑mingling of the occupations of a single attorney.)

The Commission was also asked whether the attorney could practice both of his specialties “without a conflict.” Since it is not entirely clear what was meant by conflict, we doubt that we can give a complete answer. It seems evident that the counseling occupation the attorney proposes to undertake will be so closely related to the practice of law as to subject him to the Code of Professional Responsibility in his counseling as well as his law practice. Counseling clients, knowing he is a lawyer, will inevitably be seeking and expecting legal advice along with counseling, or will assume that the counseling they receive has legal elements or is given with due regard for their legal rights and obligations. But when the lawyer‑counselor is counseling both parties to a marriage about marital conflicts, it seems clear that he cannot at the same time give legal advice or even appear to be doing so, since their interests conflict. The Commission understands that most marital counseling involves both spouses, or at least the counselors usually retain the option to deal directly with both. Thus it would appear the attorney‑counselor will not be able to act in both capacities in much of his marital counseling practice. The obligation to give each client his independent professional judgment, unimpaired by any conflicting loyalty or obligation, will apply equally to both professional roles in other situations as well. For example, clearly the attorney may not represent one spouse in a divorce action after he has provided counseling to both spouses. Although we express no opinion on the ethical responsibilities of the lawyer as counselor, we would be hard put to imagine any tolerable code of counseling ethics that did not require strict neutrality before and after joint counseling in such circumstances.

Lacking more specific questions, or more precise definition of the “conflict” anticipated, we must leave to the inquiring attorney the task of unraveling the implications of being subject to the Code of Professional Responsibility in his counseling practice.

Although not specifically raised as a question, implicit in explanatory materials submitted by the attorney is a suggestion that he may wish to use a new term, such as juropsychotherapist, to describe his practice to the public. In the Commission’s view, such use of a coined word to describe the attorney would create a serious risk of misleading the public. There is no such interdisciplinary profession now; it is not subject to interdisciplinary licensing as such; and no standards exist to judge the qualifications of a person claiming to be such. Indeed it is not clear that the attorney will be entitled to use the term psychotherapist to describe himself in any event. (See 32 M.R.S.A. § § 3811.2 and 3812). Use of any coined word to describe the attorney could suggest qualifications he does not possess, and at best would either confuse or suggest that the whole is different from the sum of its parts, an attorney who is also a marriage and family counselor. The Commission is not prepared to agree that any material difference exists, particularly in light of the conflict problems discussed earlier.


Footnotes

[1] The questions to which this opinion responds were referred by the Ethics Committee to the Grievance Commission pursuant to Maine Bar Rule 7(c)(3)(B).


Enduring Ethics Opinion