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NEW YORK STATE BAR ASSOCIATION
Committee on Professional Ethics
Opinion #695 - 08/25/1997
(11-97)
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Topic: Use of “Certified Legal Assistant” title on
letterhead and promotional materials.
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Digest: Use of “Certified Legal Assistant” title is
permissible provided certifying entity meets certain standards and
disclosure is made of certifying entity.
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Code: DR 2-101; DR 2-105(B); DR 1-104(A)(2).
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QUESTION
May an attorney identify a legal
assistant as a “Certified Legal Assistant” when the
assistant has been certified by the National Association of Legal
Assistants?
OPINION
The contents of letterheads,
promotional materials, and business cards are governed by DR 2-101(A)
and DR 2-101(D). DR 2-101(A) prohibits
the dissemination of information that is false, deceptive or misleading,
and DR 2-101(D) describes the type of information that is appropriate to
be included in letterheads or promotional materials.
We have previously concluded that
DR 2-101(D) permits lawyers to include the names of non-lawyer employees
on letterhead or other materials “whenever the inclusion of
such names would not be deceptive and might reasonably be expected to
supply information relevant to the selection of
counsel.” N.Y. State 500
(1978). The listing of paralegals and
their services provides the public with information of the type
described in DR 2-101(D). N.Y. State
640 (1992). Further, a paralegal may
use a business card that lists the name of the firm, the
paralegal’s name, and a designation of the paralegal’s
non-lawyer status. N.Y. County 673
(1989).[1]
In N.Y. State 640, this Committee
considered a paralegal’s use of the title “Public Benefits
Specialist,” and noted that New York has not established a
certifying authority to prescribe rules regarding when a lawyer may hold
himself or herself out as a specialist.[2] We concluded
that there was no authority for use of a “specialist”
designation by a lawyer or a paralegal, and any such use would be
misleading. N.Y. State 640 (1992);
Nassau County Opinion 96-11 (1996); DR 2-101(A) (prohibiting lawyer’s dissemination of misleading
communication); cf. DR 3-101
(prohibiting attorney from aiding in unauthorized practice of
law).
The present inquiry is
distinguishable from that at issue in N.Y. State 640 since it involves
the phrase “Certified Legal Assistant” rather than a claim
of specialization in a particular area. We also note that in Peel v. Attorney
Registration and Disciplinary Commission, 496
U.S. 91 (1990), the Supreme Court held that an attorney has a
constitutional right under the commercial free speech doctrine to
advertise certification as a specialist, subject to any disclaimer
required by the state to make the claim of specialization not
misleading. The Court found that the standards for certification set forth
by the National Board of Trial Advocacy were “objectively
clear” and not misleading. Id. at 102. Whatever
effect Peel may have on DR
2-105(B)’s limitation on an attorney’s use of the term
“specialist,” [3] we
conclude that an attorney may include on letterhead and other materials
the identification of a non-legal employee as a “Certified Legal
Assistant” provided that term is accompanied by the statement that
the certification is afforded by the National Association of Legal
Assistants (“NALA”), and provided further that the attorney
has satisfied himself or herself that NALA is a bona fide organization
that provides such certification to all who meet objective and
consistently applied standards relevant to the work of legal
assistants. Id.
If such conditions are satisfied,
use of the certification will not be misleading, and therefore will not
violate DR 2-101(A) or DR 1-104(A)(2).
CONCLUSION
The question is answered in the
affirmative, subject to the conditions set forth above.
[1]
We note also that DR 1-104(A)(2) holds a lawyer responsible for
non-lawyer employees who violate a disciplinary rule if the lawyer knows
or should have known of the incident and failed to take remedial
action. Thus, the manner in which a legal assistant is held out to
the public is the responsibility of the lawyer-employer.
[2]
The use of the term “specialist” by lawyers is governed by
DR 2-105(B), which provides:
A lawyer who is certified as a specialist in a
particular area of law or law practice by the authority having
jurisdiction under the laws of this state over the subject of
specialization by the lawyers may hold himself or herself out as a
specialist, but only in accordance with the rules prescribed by that
authority.
New York has not conferred jurisdiction upon any authority to certify
lawyers as specialists as provided in DR 2-105(B).
[3]
The New York State Bar Association’s House of Delegates has
recently proposed an amendment to DR 2-105(B) that would allow a lawyer
to state that he or she has been certified as a specialist under certain
enumerated conditions. The proposed amendment to DR 2-105(D)
provides:
A lawyer may state that the lawyer has been recognized or certified
as a specialist only as follows:
1. A lawyer who is
certified as a specialist in a particular area of law or law practice by
a private organization approved for that purpose by the American Bar
Association or any of the departments of the Appellate Division may
state the fact of certification if, in conjunction therewith, the
certifying organization is identified and the following statement is
prominently made: “The [name of the private certifying
organization] is not affiliated with any governmental authority.
Certification is not a requirement for the practice of law in the State
of New York and does not necessarily indicate greater competence than
other attorneys experienced in this field of law.
2. A lawyer who is
certified as a specialist in a particular area of law or law practice by
the authority having jurisdiction over specialization under the laws of
another state or territory may state the fact of certification if, in
conjunction therewith, the certifying state or territory is identified
and the following statement is prominently made:
“Certification granted by the [identity state or territory] is not
recognized by any governmental authority within the State of New
York. Certification is not a requirement for the practice of law
in the State of New York and does not necessarily indicate greater
competence than other attorneys experienced in this field of law.
This proposed amendment has not yet been acted upon by the Appellate
Division of the New York State Supreme Court.
Related Files
Opinion 695 (Adobe PDF File)
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