Can lawyers employed by an insurance company present themselves on letterhead as a law firm without disclosing that they work for the insurer?

Plain-English summary

Lawyers A and B are employees of an insurer and defend the insurer's insureds in liability claims. The opinion asks whether they may refer to themselves on letterhead and pleadings as "A & B, Attorneys at Law" (or with tags like "Not a Partnership" or "an Association of Lawyers") without disclosing their status as employees of the insurer. It answers no.

The opinion applies Oregon RPC 7.1, which prohibits false or misleading communications about a lawyer or the lawyer's services, including statements that omit a fact necessary to keep the communication from being materially misleading, and Oregon RPC 7.5, which bars firm names and professional designations that violate Rule 7.1 and allows lawyers to state or imply a partnership or organization only when that is a fact. It also points to Oregon RPC 8.4(a)(3), prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation.

The opinion relies on out-of-state authority holding that failing to identify insurer-employed lawyers is misleading. It quotes In re Weiss, Healey & Rea (a firm-style name implies a partnership in the general practice of law, with the full professional and financial responsibility that implies, rather than employees of a single insurer) and Petition of Youngblood (an attorney-employee is not a separate and independent law firm, and representing otherwise is false, misleading, and deceptive). It also cites California Formal Ethics Op. No. 1987-91, which concluded the letterhead must indicate the relationship between the lawyers and the insurer's law division. The opinion concludes that a letterhead or pleading that does not fully identify Lawyers A and B as employees of the insurer is impermissible.

In practice

This opinion was issued in 2015, after Oregon's adoption of the current Rules of Professional Conduct, so it interprets the current rule numbering, though readers should confirm the current rules before relying on it. The opinion holds that a firm-style name for insurer staff counsel is misleading unless it discloses the employment relationship, because it otherwise implies an independent general-practice partnership. Per the opinion, the analysis turns on Oregon RPC 7.1's omission standard: the designation omits the material fact of insurer employment, which a client would weigh in assessing the lawyers' interests. Verify the current text of Oregon RPC 7.1 and 7.5 before relying on any specific point.

Common questions

Q: Can insurer staff lawyers use a law-firm-style name on their letterhead?

A: Not without disclosure. The opinion concludes that using a firm-style name without identifying the lawyers as insurer employees is false or misleading under Oregon RPC 7.1 and 7.5.

Q: Why is the undisclosed firm name considered misleading?

A: Because it implies an independent partnership. The opinion, quoting In re Weiss and Petition of Youngblood, reasons that a firm-style name conveys a general-practice partnership rather than employees of a single insurer, which omits a fact material to the client.

Q: What would make the designation permissible?

A: Disclosure of the insurer relationship. The opinion, citing California Formal Ethics Op. No. 1987-91, indicates the letterhead must indicate the relationship between the lawyers and the insurer, for example by identifying them as the insurer's law division.

Background and rules framework

The opinion interprets Oregon RPC 7.1 (false or misleading communications) and Oregon RPC 7.5 (firm names and letterheads), corresponding to Model Rules 7.1 and 7.5, reinforced by Oregon RPC 8.4(a)(3) (dishonesty, fraud, deceit, or misrepresentation), corresponding to Model Rule 8.4.

Citations and references

Rules of Professional Conduct:

• Oregon RPC 7.1 / Model Rule 7.1 (false or misleading communications)
• Oregon RPC 7.5 / Model Rule 7.5 (firm names and letterheads)
• Oregon RPC 8.4(a)(3) / Model Rule 8.4 (dishonesty, fraud, deceit, misrepresentation)

Cases:

• In re Weiss, Healey & Rea, 109 NJ 246, 536 A2d 266 (1988)
• Petition of Youngblood, 895 SW2d 322 (Tenn 1995)

Other opinions cited:

• California Formal Ethics Op. No. 1987-91

See also

• OSB Ethics Op. 2005-12: Firm Names and Office Sharing
• OSB Ethics Op. 2005-65: Nonlawyer Personnel on Letterhead
• OSB Ethics Op. 2005-109: Out-of-State "Associated Office" on Letterhead

Source

• Landing page: https://www.osbar.org/ethics/toc.html
• Original PDF: https://www.osbar.org/_docs/ethics/2005-153.pdf