Opinion #91. Including Designation of Stockholder as Attorney on Business Corporation's Letterhead

Issued by the Professional Ethics Commission

Date Issued: November 16, 1988

Question Presented

Attorney Q is a shareholder in a Maine business corporation that is not a professional corporation. The corporation’s letterhead will list the non‑lawyer shareholder and Attorney Q with the latter including the appellative “Esq.” after her name. The corporation apparently will offer “consulting” services with respect to marketing real estate of its customers. The question posed is whether Attorney Q is permitted by the Bar Rules to use “Esq.” after her name on the corporation letterhead or any of its other promotional literature.

Opinion

The Commission concludes that the attorney is not prohibited from advertising her title as proposed.

The Commission has not been advised by the inquiring attorney as to the precisescope of the services the corporation will be providing but will assume they do not include activities that, if performed by lawyers, would be considered legal services.[1]

Therefore the only question is whether the proposed designation on the letterhead violates Rule 3.9. This Rule regulates advertising only to a very limited degree—it basically prohibits only false, fraudulent, misleading or deceptive statements. For reasons unnecessary to explore in this opinion the use of the anachronistic title “Esq.” after a person’s name denotes to the public, at least in this state, that he or she is an attorney at law. Thus the designation cannot be considered either false or fraudulent in this case—the person is an attorney. Where the services the corporation is offering to the public do not include rendering legal services, the mere publicizing of a stockholder as an attorney cannot support a conclusion that there is an intent to mislead or deceive the public as to the activities of the corporation, nor that such deception will occur. The Commission sees no distinction between the identification of a stockholder/director as an attorney in the present case from those letterheads and brochures of charitable and non‑profit corporations that similarly identify attorneys on their Board of Directors or Trustees. In either case the mere advertising of the lawyer’s title, for whatever prestige value it may hold, does not violate Rule 3.9.


Footnote

[1] One member of the Commission cannot agree with this assumption and would therefore find that since participation by the lawyer in the organization violates Rule 3.2(a)(2) and 3.3(e) (see Opinions 69 and 79) there is no need to address the question raised by this inquiry.


Enduring Ethics Opinion