Can a North Carolina lawyer let a non-employee, non-affiliate, or a client send a letter on the firm's letterhead?

Plain-English summary

The first inquiry asks whether a lawyer may let a person who is neither employed by the firm nor subject to any firm lawyer's supervision use the firm's letterhead. The opinion answers no. It is misconduct to violate the Rules through the acts of another (Rule 8.4(a)), and the Rules bar false or misleading communications about the lawyer or the lawyer's services (Rule 7.1(a)) and conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c)). A recipient of a letter on firm letterhead assumes it was written by a firm lawyer or by an employee or affiliate acting under a firm lawyer's authority and supervision; in the worst case, the recipient assumes the sender is a firm lawyer. A lawyer may not participate, actively or passively, in that deception, and a lawyer who learns a non-employee, non-affiliate is using firm letterhead must take steps to stop the misuse.

The opinion carves out a narrow alternative: a lawyer may allow a client to draft a letter to be printed on letterhead if the lawyer reviews and assumes responsibility for the content by signing it.

The second inquiry asks whether a client may use the firm's letterhead for non-legal activities, such as writing loan terms on letterhead for a third party to sign in a transaction the lawyer expects to close, and whether supervising the content cures the problem. The opinion answers no to both, because the third party may falsely believe the client is acting with the firm's authority, and the use may create the false impression that the firm is verifying or endorsing the transaction.

An endnote notes that a person who is not an employee but is formally affiliated with the firm, such as a contract lawyer or paralegal, may use firm letterhead if authorized to act on the firm's behalf and the affiliation is set forth on the letterhead or otherwise in the letter, citing RPC 126.

In practice

Under the North Carolina rules as they stood at the time of the opinion, letting a non-employee, non-affiliate, or a client send a letter on firm letterhead is not permitted, because it falsely implies firm authority, supervision, or endorsement. Per the opinion, a lawyer who learns of such misuse must take steps to stop it.

Per the opinion, two narrow alternatives are allowed: a lawyer may sign a letter a client drafted after reviewing and assuming responsibility for its content, and a formally affiliated contract lawyer or paralegal may use letterhead if authorized and the affiliation is stated on the letterhead or in the letter.

Common questions

Q: Can I let a client use my firm's letterhead to negotiate a loan or other non-legal matter?

A: No. The opinion concludes the third party may falsely believe the client is acting with the firm's authority, and the use may create the false impression that the firm is verifying or endorsing the transaction, even if the lawyer supervises the content.

Q: Can a client ever put something on my letterhead?

A: Only if the lawyer adopts it. The opinion allows a lawyer to let a client draft a letter on letterhead if the lawyer reviews and assumes responsibility for the content by signing it.

Q: What must I do if I learn a non-affiliate is using my firm's letterhead?

A: The opinion states the lawyer must take steps to stop the misuse, because a lawyer may not participate actively or passively in the deception that the sender acts with firm authority.

Q: Can a contract lawyer or paralegal use the firm's letterhead?

A: Yes, within limits. The endnote, citing RPC 126, states a formally affiliated contract lawyer or paralegal may use firm letterhead if authorized to act on the firm's behalf and the affiliation is set forth on the letterhead or in the letter.

Background and rules framework

The opinion applies North Carolina Rule 8.4(a) (violating the Rules through the acts of another), Rule 7.1(a) (false or misleading communications about the lawyer or the lawyer's services, the analogue of Model Rule 7.1), and Rule 8.4(c) (conduct involving dishonesty, fraud, deceit, or misrepresentation). It treats firm letterhead as a representation of firm authorship, authority, and supervision that the lawyer may not let an outsider borrow.

Citations and references

Rules of Professional Conduct:

• MR 8.4 / NC Rule 8.4(a) (violating the Rules through the acts of another)
• MR 7.1 / NC Rule 7.1(a) (false or misleading communications about the lawyer or services)
• MR 8.4 / NC Rule 8.4(c) (dishonesty, fraud, deceit, or misrepresentation)

Other opinions cited:

• NC RPC 126: a formally affiliated contract lawyer or paralegal may use firm letterhead if authorized and the affiliation is disclosed.

See also

• ABA Formal Op. 90-357: The 'Of Counsel' Designation
• ABA Formal Op. 507: Office Sharing With Lawyers

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2011-formal-ethics-opinion-9/

Original opinion text

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

Inquiry #1:

May a lawyer allow a person who is not employed by the lawyer’s firm and who is not subject to the supervision or control of any lawyer with the firm to use the firm’s letterhead?

Opinion #1:

No. It is professional misconduct for a lawyer to violate the Rules of Professional Conduct through the acts of another. Rule 8.4(a). The Rules prohibit false or misleading communications by a lawyer about the lawyer or the lawyer's services. Rule 7.1(a). They also prohibit conduct involving dishonesty, fraud, deceit, or misrepresentation. Rule 8.4(c). A recipient of a letter on a law firm’s letterhead assumes that the letter was written by a firm lawyer or by an employee or affiliate1 of the firm who is acting under the authority, supervision, and control of a firm lawyer. If a person who is not employed or formally affiliated with the firm sends a letter on firm letterhead, it creates the false impression that the person has the authority to act on behalf of the law firm and is being supervised by a firm lawyer. In the worst case, the recipient may falsely assume that the sender is a lawyer with the firm. A lawyer may not participate actively or passively in this deception. If a lawyer learns that someone who is not employed or affiliated with the firm is using firm letterhead to write to third parties, the lawyer must take steps to stop the misuse of the letterhead.

A lawyer may, however, allow a client to draft a letter to be printed on letterhead if the lawyer reviews and assumes responsibility for the content of the letter by signing it.

Inquiry #2:

A client would like to use the letterhead of his lawyer’s firm for activities that do not constitute the practice of law. For example, when negotiating the terms of a loan with a third party, the client wants to write the terms on the firm letterhead and have the third party sign the document. The client and the lawyer anticipate that the loan will subsequently be closed by the lawyer. May a lawyer allow a client to use his firm’s letterhead in this manner? May a lawyer agree to such use if the lawyer supervises or controls the content of the document?

Opinion #2:

No, because the third party may falsely believe that the client is acting with the authority of the law firm. See Opinion #1. In addition, it may create the false impression that the law firm is verifying or endorsing the transaction.

End Notes

• A person who is not an employee but who is formally affiliated with a firm, such as a contract lawyer or paralegal, may use firm letterhead if the person is authorized to act on the firm’s behalf and the affiliation is set forth on the letterhead or otherwise in the letter. See, e.g., RPC 126.