Can salaried lawyers employed by an insurance company to defend its policyholders call themselves a law firm on letterhead and business cards?

Plain-English summary

The committee considered whether a group of lawyers who are salaried employees of an insurance company, working exclusively to defend the company's policyholders, may refer to themselves on letterhead and business cards as a law firm (for example, "Law Offices of A, B & C"). The committee framed the question under the rules against misleading communications: DR 2-101(A), DR 2-102(B), DR 2-102(C), and DR 1-102(A)(4).

The committee held that holding out as a law firm would be misleading, and impermissible, if the lawyers do not actually function as a firm under the Code. Being a firm carries obligations: the firm and its managing lawyers must make reasonable efforts to ensure all lawyers comply with the disciplinary rules (DR 1-104), conflicts are imputed among the lawyers (DR 5-105(D)), and engagement records must be checked for conflicts (DR 5-105(E)). If the lawyers act only as individual employees rather than accepting those firm responsibilities, calling themselves a firm would mislead the public.

Even when the lawyers do accept firm responsibilities, the committee identified a further risk: a traditional firm-style name could mislead clients into thinking the group is a partnership, that the lawyers are independent of the insurer, or that they represent clients beyond the company's policyholders. Surveying authorities from other jurisdictions (including the New Jersey, Kentucky, Oregon, and West Virginia treatments and the Cincinnati Insurance Co. v. Wills and In re Weiss, Healey & Rea decisions), the committee sided with those that permit a firm name accompanied by disclosure of the employment relationship. It concluded the lawyers must clearly explain in their letterhead and other public communications that they are employees of the particular insurance company. The committee added one limit: where a court rule or other legal obligation makes it inappropriate to disclose the insurer affiliation to a jury or other adjudicative body, that obligation supersedes the Code's disclosure requirement in that context.

Currency note

This opinion was issued in 2000, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 2009. 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 insurance staff counsel call themselves a law firm at all?

A: The opinion concluded yes, but only if they actually take on the Code's firm-level responsibilities (such as the supervision duties of DR 1-104 and the conflict-checking duty of DR 5-105(E)) and they disclose their employment by the insurer.

Q: What disclosure did the opinion require?

A: The opinion held that letterhead and other public communications must clearly explain that the lawyers are employees of the particular insurance company, so clients and others are not misled about the nature of the practice or the relationship with the insurer.

Q: Is there an exception to the disclosure requirement?

A: Yes. The opinion held that where a court rule or other legal obligation makes disclosing the insurer affiliation to a jury or other adjudicative body inappropriate, that obligation supersedes the Code's disclosure requirement in that setting.

Background and rules framework

The opinion interpreted New York's former Code of Professional Responsibility rules against misleading communications and misleading firm names (DR 2-101(A), DR 2-102(B), DR 2-102(C), DR 1-102(A)(4)) together with the rules defining firm responsibilities (DR 1-104, DR 5-105(D), (E)). The Model Rule analogues are Rule 7.1 (communications about a lawyer's services), Rule 7.5 (firm names and letterheads), and Rule 5.4 (professional independence). New York replaced the Code with the Rules of Professional Conduct in 2009; the DR numbers cited here are historical.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications concerning a lawyer's services)
• MR 7.5 (firm names and letterheads)
• MR 5.4 (professional independence of a lawyer)
• NY DR 2-101(A); DR 2-102(B), (C); DR 1-102(A)(4); DR 1-104; DR 5-105(D), (E)

Cases:

• Cincinnati Insurance Co. v. Wills, 717 N.E.2d 151 (Ind. 1999), insurance staff counsel firm names
• In re Weiss, Healey & Rea, 536 A.2d 266 (N.J. 1988), use of a firm name by insurer staff counsel

Other opinions cited:

• N.Y. State 109 (1969): attorneys may be employed as house counsel for an insurance company
• Nassau County 95-5 (1995): insurer staff counsel need not, but may, identify themselves as company employees
• Oregon Op. 1998-153 and West Virginia Op. 99-01: disclosure of the insurer relationship on letterhead

See also

• NY State Bar Op. 732: "The X Group" as a permissible firm name
• NY State Bar Op. 1235: Firm operating under multiple assumed names
• NY State Bar Op. 1207: Law firm trade names after the Rule 7.5 amendment

Source

• Landing page: https://nysba.org/opinion-726/