Ethics Opinions

Opinion No. 76-18

Summary: It is improper and misleading for an out-of-jurisdiction firm whose members and associates are not admitted to the Massachusetts bar to place a "Boston Office" address on its letterhead. In addition, the letterhead of such an out-of-jurisdiction law firm may not contain, without more, the names of Boston lawyers who are not associates or partners of that firm.
It is proper for an out-of-jurisdiction firm to have a local office indicated on its letterhead if (1) that office is operated by at least one member or associate of the firm who is admitted to the Massachusetts bar, and (2) any enumeration of lawyers on the firm letterhead makes clear which lawyers are not admitted to practice in Massachusetts and any other jurisdictional limitations.

Facts: A New York law firm, whose lawyers are not admitted to practice in Massachusetts, desires to retain a Boston law firm "as its Boston counsel, for which it proposes to pay ... a monthly retainer fee." The Boston firm would receive and forward mail and telephone calls for the New York firm's clients and generally act as that firm's "liaison in Boston." The New York firm seeks to place on its letterhead the statement "Boston Office [street address.]" As an alternative, the New York firm wishes to place on its letterhead "Boston Office [street address]," followed by the names of two of the members of the Boston firm.
The two members of the Boston firm are not partners or associates of the New York firm. Both firms wish to know if either the "proposed letterhead or business arrangement" creates "any legal or ethical problems."
Discussion: We note at the outset that we are asked whether either the proposed letterheads or business arrangement creates "any legal or ethical problems" [emphasis supplied]. We do not give opinions of law, and in particular, will not pass on what constitutes unauthorized practice of law in Massachusetts, although that issue could be presented by this inquiry.
As a matter of professional ethics, both of the proposed alternative letterheads are misleading and, therefore, improper for use in this jurisdiction. "In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status." EC 2-13. To merely add the words "Boston Office [street address]" to the New York firm's letterhead creates the false impression that at least some lawyers of the New York firm are admitted to practice in Massachusetts. DR 2-102(D) specifically provides:
(D) A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.
Even if one or more of the lawyers in the New York firm were admitted to practice in Massachusetts, the first proposed letterhead does not meet the standards of DR 2-102(D), supra.
The alternative proposed letterhead, which would contain the words "Boston Office [street address]" followed by the names of two members of the Boston firm, also fails to meet the designated jurisdictional limitation standards of DR 2-102(D), supra. In addition, it creates a false impression that the Boston lawyers are partners or associates of the New York firm. A lawyer "should not hold himself out as being a partner or associate of a law firm if he is not one in fact ... ." EC 2-13, and see DR 2-102(C).
The question of whether the Boston lawyers could be listed on the New York firm's letterhead as being "of counsel" is not before us, as it was not one of the alternatives suggested by petitioners. We note, however, that ABA Informal Opinion 1173 (1971) stated:
It is significant that the Code of Professional Responsibility's DR 2-102(A)(5) permits only 'a listing of the office of a lawyer or law firm in the alphabetical and classified sections of the telephone directory or directories for the geographical area or areas in which the lawyer resides or maintains offices or in which a significant part of his clientele resides and in the city in which his or the firm's office is located.' (The italicized words are words of limitation.) Inferentially, in our opinion, this prohibits the use of a lawyer's name as 'Of Counsel' outside of such geographical area unless the lawyer so designated as 'Of Counsel' had a previous continuing relationship with such lawyer or law firm within such geographical area. [Emphasis in original.]
ABA Informal Opinion 1173 was recently reconsidered by ABA Formal Opinion 330 (1972), which specifically reaffirmed the earlier opinion's holding that a local law firm cannot be "of counsel" to an out-of-jurisdiction law firm. See ABA Formal Opinion 330 (1972), 58 A.B.A.J. 1330, at 1331 (Dec. 1972).
Without trying to suggest what new arrangements could properly be made, in light of this opinion, we would note that the above professional problems do not arise if the New York firm opens a Boston office of its own, operated by at least one member or associate of the firm who is admitted to the Massachusetts bar. The letterhead of the New York firm could list the address of such a Boston office, but it must comply with DR 2-102(D), supra, by indicating "in all enumerations of the members and associates of the firm on its letterhead" which members of the firm are admitted to practice in Massachusetts and otherwise indicating "jurisdictional limitations."


Permission to publish granted by the Board of Delegates, 1976. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.
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