Can a private law firm on retainer to a railroad use the railroad's company stationery marked 'Law Department' and 'Division Counsel'?

Plain-English summary

A Florida Bar member and his firm, paid a monthly retainer to represent a railroad company, asked whether they could use the railroad's stationery in correspondence on railroad matters. The stationery carried, beneath the railroad's name, the legend "Law Department," a community name, and in smaller print the firm's name and the legend "Division Counsel." Neither the lawyer nor his firm held themselves out publicly or to other lawyers as "Division Counsel," and the stationery was used principally for correspondence with railroad employees.

Relying on its earlier Opinion 66-19, the committee restated its long-held view that a lawyer may not hold himself out to the public as "General Counsel" of a corporation unless he is in fact a full-time employee. Although there might be some distinction between "Division Counsel" and "General Counsel," the committee found the lawyer had acted correctly in refraining from publicly holding himself out as "Division Counsel," because neither he nor his firm were railroad employees. The committee concluded the lawyer must similarly refrain from using the stationery except in dealings with railroad employees or representatives. While the committee doubted the use was necessary, it allowed that, confined to correspondence between the lawyer and his client where "Division Counsel" had meaningful value, the stationery could be used. The "Law Department" designation, however, could never properly be used by a private practitioner who was not a railroad employee, because that phrase could only convey that the writer was in fact an employee of the railroad, which was not the case.

Currency note

This opinion was issued in 1968, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied former Canons 27 and 35 of the Canons of Professional Ethics; as the opinion's own note records, lawyer advertising and the use of designations and letterhead are now addressed by Rules 4-7.11 through 4-7.22 of the Rules Regulating The Florida Bar, including the firm-names-and-letterhead provisions of Rule 4-7.21 (Model Rules 7.1 and 7.5). The opinion relied on Opinion 66-19, which it noted has since been withdrawn. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can outside counsel use a corporate client's 'Law Department' letterhead?

A: On the facts of this opinion, no. The committee concluded that "Law Department" could only signify that the writer was an employee of the company, so a private practitioner who was not an employee could not use that designation at all.

Q: Could the firm use 'Division Counsel' stationery?

A: Only in dealings directly with the railroad's employees or representatives, where the designation had meaningful internal value. The committee found the lawyer had acted correctly in not holding himself out publicly as "Division Counsel."

Q: What was the committee's underlying concern?

A: That a designation like "General Counsel," "Division Counsel," or "Law Department" not falsely suggest to the public that an outside lawyer is a full-time employee of the company, consistent with its earlier Opinion 66-19.

Background and rules framework

The opinion applied former Canons 27 and 35 of the Canons of Professional Ethics, concerning advertising and the manner in which a lawyer holds himself out. The firm-name, letterhead, and designation questions are now governed by The Florida Bar's advertising rules, Rules 4-7.11 through 4-7.22, including Rule 4-7.21 on firm names and letterhead (Model Rules 7.1 and 7.5). The committee's analysis turned on whether a corporate designation would misleadingly suggest employee status to the public.

Citations and references

Rules of Professional Conduct:

• Canons 27 and 35 [Canons of Professional Ethics; see current Rules 4-7.11 through 4-7.22, including 4-7.21]

Other opinions cited:

• Florida Opinion 66-19 [since withdrawn]: holding out as "General Counsel" of a corporation

See also

• FL Bar Ethics Op. 62-45: Political Endorsement on Office Letterhead
• FL Bar Ethics Op. 00-1: Firm Name, Retired and Of-Counsel Partners

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-68-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-68-33-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 68-33
July 12, 1968
Advisory ethics opinions are not binding.
A law firm that represents a railroad company should refrain from using company stationery denoting the firm as division counsel, except in dealings directly with employees or representatives of the railroad company. To include the designation "Law Department" on company stationery used by private practitioners would be misleading.
Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22.
Canons: 27, 35
Opinion: 66-19
Chairman MacDonald stated the opinion of the committee:
The committee is asked whether it is appropriate for a member of The Florida Bar and his firm, who represent a railroad company, being paid a monthly retainer for their services, to utilize, in the course of correspondence in matters pertaining to the railroad, stationery of the railroad company bearing beneath the name of the railroad company the legend "Law Department," the name of the community in question, and in smaller print the name of the firm of the inquirer and the legend "Division Counsel." Neither the inquirer nor his firm hold themselves out to the public or to other lawyers as "Division Counsel" or in any similar capacity. We are told that insofar as the inquirer is concerned, such designations are meaningful only within the railroad organization and that the stationery is used principally, if not entirely, for correspondence with the employees of the railroad.
In our Opinion 66-19 [since withdrawn], we emphasized the long-established view of this Committee that it was improper for an attorney to hold himself out to the public as "General Counsel" of a corporation unless he was, in fact, a full-time employee of the corporation. Although there may be some distinction between "Division Counsel" and "General Counsel," it is our opinion that the inquirer has acted correctly and in accord with Opinion 66-19 in refraining from holding himself out to the public or other lawyers as "Division Counsel," because neither he nor his firm are, in fact, employees of the railroad company. In the same light, it is our judgment that he must similarly refrain from using the stationery in question, except in dealings with employees or representatives of the railroad company.
Although we have some doubt that the use of the stationery for any purpose is really necessary or desirable, so long as its use is confined to correspondence between the lawyer and his client, and the designation of "Division Counsel" carried thereon has some meaningful value to the lawyer or his client, it is our judgment that it may properly be used. However, it is our judgment that stationery under no circumstances may properly include the designation "Law Department" when utilized by a private practitioner who is not an employee of the railroad company. The use of this phrase is significantly broader than the term "Division Counsel" and can have no connotation other than the inescapable one that the writer of the letter is, in fact, an employee of the railroad company. Inasmuch as this is clearly not the case, it is our opinion that it would not be appropriate or proper for the stationery to include this phrase.