I understand the desire to get creative and explore new ways to drive business to the practice when times are tough. Here at ALPS, we see attorneys trying all kinds of things. The move toward the virtual practice of law continues to build steam. Lawyer participation in social media now seems pretty much a given, and how about that App marketplace? Certainly one ought to be able to make a little money there! Personally, I feel that trying to reinvent one’s practice in order to stay current with the times is a pretty savvy business decision. My concern, however, is when a firm tries to take a shortcut to get there and one troubling shortcut that I come across from time to time is one taken with letterhead.
For example, two attorneys who practice together in one jurisdiction decided they wanted to list on their letterhead two additional family members who were also attorneys but who happened to live and work in a different jurisdiction. This letterhead was to be used on all matters going forward. The two out of state attorneys were to be listed as of counsel and had no intention of ever actually working on any client matters at the firm. The sole interest in listing these attorneys as of counsel was based upon the jurisdiction in which they were actively licensed, which in this instance turned out to be New York. In short, the firm wished to present itself as being able to attract the attention of New York attorneys.
The problem here was that the information they wanted to place on their letterhead wasn’t going to be accurate. By using the term “of counsel” they were going to be stating that the of counsel attorneys intended to provide close, ongoing, regular and frequent contact with the firm for the purpose of consultation and advice. That is what of counsel means. Of course the problem was this wasn’t going to be the case so placing their names on the letterhead would have been a misleading statement and thus unethical.
Realize, however, there would have been an additional risk to the out of state attorneys if they actually did get added as of counsel attorneys solely for marketing purposes. Consider the fallout of a malpractice claim. Of course everyone on the letterhead would be named in the suit to include the of counsel attorneys. The firm would report the claim and coverage for the of counsel attorneys would end up being denied because the of counsel attorneys were never listed as insured attorneys on the policy. No one wanted to pay the additional premium when no actual work was going to be done by the of counsel attorneys. Now, the two of counsel attorneys would also report this claim to their own carrier who would similarly deny the claim because their own policy is only going to cover them for work that they do on behalf of clients of the named insured which is their own firm, not the firm to which they agreed to be of counsel. Ouch. The of counsel attorneys end up bare on this one.
In another situation, a group of attorneys practiced together in an office share setting but all maintained separate and distinct practices. The public spaces were common and they shared a conference room and receptionist services. In order to save a little money, someone floated the idea of sharing the costs of advertising and the group decided to refer to themselves as The Personal Injury Law Group. All advertising materials were changed to reflect the new name. Of course, all started to use letterhead that continued to list each one’s individual contact information but now included the words “The Personal Injury Law Group” at the top. Again, this was misleading since there was no firm behind that name. The information simply wasn’t accurate.
Coverage concerns quickly come to the forefront here as well because malpractice policies generally exclude coverage for any and all claims that arise out of or in connection with any act, error or omission committed by an attorney with whom an insured shares common office space and who is not an insured under the insured’s policy. Unfortunately their use of the common advertising and letterhead that stated the attorneys were a group invites these kinds of uncovered claims because the public was being encouraged to view the individual attorneys as a group. Should one of them ever miss a deadline, the entire group may have a very serious problem.
Finally, a small firm had offices in one city in a given jurisdiction yet they advertised and gave the impression on their letterhead that they had multiple locations throughout the state by way of providing local contact information for potential clients in every major city in that jurisdiction. All of this was done without a statement clarifying that the firm actually had just one location. Again, this was found to be misleading and an ethical misstep.
These examples do a pretty good job of pointing out the kinds of shortcuts that create problems. With all this in mind, here are a few tips that may prove useful. Always be truthful with all information listed on your letterhead. Letterhead is not meant to be used to create an impression that your practice is more than it is. If you are a solo, be proud of that. Don’t hide behind a title of Attorney and Associates. For some, that approach will come across as something akin to a bait and switch ad. If you are in an office share setting, focus on clear indicia of separation and don’t pretend to be more than you actually are. Even if you aren’t in an office share setting, don’t imply that a partnership or other relationship exists when it actually doesn’t. Of counsel attorneys must be available to consult with the firm and in fact do so on a fairly regular basis if they are to be listed on your letterhead; and in fact, one would be well advised to only use letterhead that lists an of counsel attorney when the of counsel attorney is actually going to be involved in the matter. Otherwise just use your regular letterhead. Finally, if distinguished partners are no longer practicing with the firm or have since passed, place the word “retired” or “deceased” after their names if you wish to continue to list them. Creativity in finding new ways of practicing can be a good thing; just don’t be misleading about what you’re doing, be it on your letterhead or even with your online presence. That kind of shortcut is madness.