Can an attorney who is also a real estate broker advertise both roles when soliciting real estate business?

Plain-English summary

An Arizona lawyer who was also a licensed real estate broker asked for guidance on soliciting real estate business in his dual capacity: whether he could solicit on legal letterhead (stating he would act only as a broker), whether he could solicit on broker letterhead with no mention of being a lawyer, and whether he could mention his law license while soliciting on broker letterhead.

On the first question, the committee concluded he may. It recounted that former DR 2-102(E) had barred a dual-career attorney from showing his legal status on non-legal materials (the basis of its Opinion No. 78-35), but the ABA rescinded DR 2-102(E) in 1980, and the Rules adopted in Arizona in 1985 do not prohibit a lawyer from truthfully listing other professional fields on letterhead. To that extent, the committee overruled the part of Opinion No. 78-35 holding that an attorney may not show a real estate license on business cards or other communications. It added that, after Shapero v. Kentucky Bar Association (1988), targeted mailings could no longer be flatly prohibited so long as they are not false or misleading under ER 7.1, so the lawyer-broker may use his legal letterhead (showing the broker license) for a mailed solicitation that complies with ER 7.1, while remaining mindful that the Supreme Court might adopt rules to monitor such mailings.

On the second question, the committee concluded that if the lawyer-broker makes no mention of being a lawyer, on the letterhead or in the body, and runs the brokerage separately from his law office, he may advertise like any other broker, and the Rules of Professional Conduct do not reach that solicitation. The rationale is that being a lawyer should not bar otherwise-proper real estate solicitation, provided the legal status is not communicated to the prospective customer.

On the third question, the committee concluded that once the fact that the solicitor is a lawyer is made known, anywhere in the letter, or by directing customers to an address or phone number calculated to reveal it, ER 7.1 and all the other Rules apply just as if the letter had been sent on legal letterhead.

Currency note

This opinion was issued in 1988, before the State Bar of Arizona's adoption of the 2003 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a lawyer-broker note the broker license on legal letterhead?

A: The opinion concluded yes; the Rules permit truthfully listing other professional fields on letterhead, and the part of Opinion No. 78-35 to the contrary is overruled.

Q: Can the lawyer-broker solicit real estate business without mentioning he is a lawyer?

A: Yes; the committee concluded that if no mention is made and the brokerage is run separately from the law office, the solicitation falls outside the Rules of Professional Conduct.

Q: What happens if the law license is mentioned on broker letterhead?

A: The opinion concluded that once the law license is disclosed anywhere, ER 7.1 and the other Rules apply as if the letter were sent on legal letterhead.

Background and rules framework

The opinion applied ER 7.1 (Model Rule 7.1) on misleading communications, ER 7.3 (Model Rule 7.3) on direct contact with prospective clients, and ER 7.5 (Model Rule 7.5) on letterheads. It noted the 1980 rescission of former DR 2-102(E) and relied on Shapero v. Kentucky Bar Association for the proposition that truthful, non-misleading targeted mailings may not be flatly prohibited.

Citations and references

Rules of Professional Conduct:

• ER 7.1 / Model Rule 7.1 (communications concerning a lawyer's services)
• ER 7.3 / Model Rule 7.3 (direct contact with prospective clients)
• ER 7.5 / Model Rule 7.5 (firm names and letterheads)

Cases:

• Shapero v. Kentucky Bar Association, 486 U.S. 466 (1988), targeted truthful direct-mail solicitation protected

Other opinions cited:

• Arizona Opinion No. 77-16 (1977); Opinion No. 78-35 (1978) (partially overruled); Opinion No. 80-16 (1980)

See also

• AZ Ethics Op. 87-12: Targeted Direct-Mail Solicitation
• AZ Ethics Op. 88-07: Advertising and Direct Contact
• AZ Ethics Op. 87-11: Specialty on Letterhead

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=582

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

10/1988

Attorney who is also a real estate broker communicating this fact on his legal letterhead to solicit real estate business.

FACTS

The inquirer is both an Arizona attorney and a licensed Arizona real estate broker. The attorney asks for guidance regarding solicitation of business in this dual-career capacity.

QUESTIONS

1. May an attorney/real estate broker solicit real estate business on his legal letterhead, when the letter explicitly states that the attorney will be acting in such business only in the capacity of a real estate broker, and not as an attorney?

2. If not, may the attorney/real estate broker solicit such real estate business using his real estate broker's letterhead with no indication, either in the letterhead or in the body of the letter, that he is also an attorney?

3. Is it ethically permissible for the attorney/real estate broker to mention the fact that he is also an attorney, when soliciting real estate business on his real estate broker's letterhead?

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

(b) is likely to create an unjustified expectation about results the lawyer can achieve, . . . .; Or

ER 7.3. Direct Contact with Prospective Clients

A lawyer may not solicit professional employment from a prospective client with whom the lawyer has no family or prior professional relationship... when a motive for the lawyer’s doing so is the lawyer's pecuniary gain. The term "solicit" includes contact in person, by telephone or telegraph, by letter or other writing, or by other communication directed to a specific recipient, but does not include letters addressed or advertising circulars istributed generally to persons not known to need legal services of the kind provided by the lawyer in a particular matter, but who are so situated that they might in general find such services useful.

ER 7.5. Firm Names and Letterheads

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. ...

OPINION

Relevant prior opinions of this committee and their digests - each of which was decided under the then-applicable Code of Professional Responsibility - include:

Opinion No. 77-16 (June 20, 1977) - No ethical impropriety in attorney obtaining a real estate salesman's or broker’s license, establishing and maintaining a real estate office separate from and independent of his law office, and thereafter soliciting real estate listings and advertising listed properties out of such real estate office, provided attorney observes DR 2-102(E) and other provisions of Code.

Opinion No. 78-35 (October 18, 1978) - Ethically impermissible for attorney, working as part-time sales associate of real estate broker, to show "Attorney at Law" or RJ.D" alongside his name on real estate broker's business cards.

Opinion No. 80-16 (June 5, 1980) - Attorney-CPA may permissibly show both capacities in his advertisements, which may not, however, properly include references to both accounting services and legal services offered by him.

Turning to the questions raised by the inquiring attorney here:

Question 1 - May an attorney/real estate broker solicit real estate business using his legal letterhead?

In our Opinion No. 80-16, we permitted an attorney/accountant to advertise that the attorney was also a certified public accountant.

In our Opinion No. 77-16, we concluded that an attorney/real estate broker could solicit real estate listings out of his real estate office, which was separate and independent of his law office. We stated that such conduct did not present problems of ethical impropriety, so long as the attorney fully complied with the provisions of the Code of Professional Responsibility which was then in effect. However, we concluded in our later Opinion No. 78-35 that a dual-career attorney was prohibited from showing "Attorney at Law" on business cards relating to his non-legal profession. This prohibition was based upon former Disciplinary Rule 2-102(E), which prohibited a dual-career attorney from indicating this fact on any letterhead, office sign, professional card or publication. In February, 1980, the American Bar Association rescinded DR 2-102(E).

The new Rules of Professional Conduct adopted by the Supreme Court of Arizona effective February 1, 1985, do not prohibit an attorney from listing other professional fields in which he or she is qualified on a letterhead or by other means of communication. To the extent that such information is truthful, it is helpful to the consumer.

Thus, under the new Ethical Rules, an attorney may show on his or her legal letterhead that the attorney also possesses a real estate broker's license. That portion of our Opinion No. 78-35 which held that an attorney may not show, on business cards or other forms of communication, that he or she holds a real estate sales person's license, is overruled.

Prior to the United States Supreme Court decision in Shapero v. Kentucky Bar Association, _ U.S., 108 S. Ct. 1916, _ L. Ed. 2d, 56 L.W. 4532 ( No. 87-16) (June 14, 1988), solicitation of potential clients through the mail was governed by ER 7.3, which permitted the attorney to send out general mailings, but not specific, targeted mailings to such potential clients. The Shapero decision ruled that the Kentucky Bar Association could not prohibit targeted mailings, so long as the letters did not include false or misleading information in violation of ER 7.1. The Court did indicate that bar associations could monitor and police such targeted mailings to ensure their accuracy.

Therefore, it is ethically permissible for the inquiring attorney to include on his legal letterhead a truthful statement that he also possesses a real estate broker's license. In addition, the attorney/real estate broker may use such letterhead in a mailed solicitation, so long as it complies fully with ER 7.1. The inquiring attorney should also be mindful of the fact that additional rules may be promulgated by the Supreme Court of Arizona in an effort to monitor such mailings.

Question 2 - May the attorney/real estate broker solicit real estate business on his real estate stationery without reference to the fact that he is also an attorney?

So long as the attorney/real estate broker makes no mention of the fact that he is also an attorney, either on the printed real estate broker's letterhead or in the body of the solicitation letter, and the business is operated separately and independently of his law office, he may advertise just as any other real estate broker may do. The rationale for this view is that a real estate broker should not be prohibited from proper, legal solicitation of real estate clients simply because he is also an attorney, provided that this fact is in no way communicated to the prospective real estate customer.

Therefore, we conclude that any solicitation of real estate business by the attorney/real estate broker, which makes no mention of the fact that the broker is also an attorney, is not affected by the Rules of Professional Conduct.

Question 3 - May the attorney/real estate broker mention the fact that he is also an attorney in the body of a solicitation letter sent on his non-legal, real estate broker's letterhead?

As noted above, in the answer to Question 1, once the fact is made known that the solicitor is also an attorney, the requirements of the Ethical Rules, specifically ER 7.1, apply, just as if the letter had been sent on the attorney's legal letterhead.

Therefore, if any mention is made, anywhere in the solicitation letter, of the fact that the solicitor is an attorney, or if real estate customers are asked to respond to an address or telephone number which is calculated to make this fact known to them, the prohibitions of ER 7.1, and all of the other Ethical Rules, apply to the attorney/real estate broker's conduct, just as if the letter were sent on the attorney's legal letterhead.

© State Bar of Arizona 1988