Opinion 87-5
(April 1987)

Your inquiry, made by letter dated March 10, 1987, was addressed at the meeting of the Professional Guidance Committee on March 16, 1987. As noted in your letter, you proposed to place the following notation on your letterhead regarding one of your associates:

...is a former attorney with the Immigration and Naturalization Service of the Department of Justice.

After discussion and a vote, the Committee ruled not to approve your proposed letterhead. It concluded that the proposal could constitute a violation of DR2-101(A) and DR2-105(A).

DR2-101(A) states that "[n]o lawyer shall engage in, utilize or allow any form of advertising that is knowingly false, fraudulent or misleading." DR2-105(A) provides, in part, that:

A lawyer shall not hold himself publicly as, or imply that he recognized or certified specialist except as follows:

(4) A lawyer who is certified as specialist in a particular field law or law practice by the authority having jurisdiction under state law over the subject of specialization by lawyers may hold himself out as such specialist but only in accordance with the rules prescribed by that authority [emphasis added].

The Committee did not believe that your proposed letterhead was false or fraudulent on the surface. However, the Committee was of the view that such a letterhead may create several misleading implications, specifically:

1. An ongoing relationship exists between your firm and the Immigration and Naturalization Service, such that any immigration case your firm handled would get "special consideration" by the Service.

2. Any legal opinions or advice given by letter to a client or another attorney has the approval of the Immigration and Naturalization Service.

The Committee felt that your proposed letterhead may also violate the proscription noted in DR2-105(A) against specialization. Noting the prior employment on stationery implies an expertise or specialization in immigration matters. There are no special requirements, to our knowledge, to practice immigration law as opposed to other areas of the law. In addition, there are no licensing requirements nor is any certification available for an attorney who has an immigration practice. As such, you would not qualify under the exception listed in DR2-105(A)(4).

A letterhead mixes an attorney's work product (namely legal advice and/or opinion) with a form of advertising. In effect, every piece of outgoing mail becomes an advertisement. In the view of the Committee, it is the combined effect which has the potentially misleading implications.

Prior employment with the Immigration and Naturalization Service does not necessarily mean that the former employee has expertise in this field. This is not to imply that you are not qualified to practice in the immigration area; rather the implication which could be made from such a notation has no objective standard against which to measure the specialty.

In your initial telephone contact and your letter of inquiry, Professional Guidance Opinion #86-7 and DR2-102(E) were cited by you as a basis for allowing your proposed letterhead. The Committee recognized that the entire area of legal advertising in Pennsylvania has undergone dramatic changes after the decision in Spencer v.The Honorable Justices of the Supreme Court of Pennsylvania, 579 F. Supp. 880 (E.D.Pa. 1984). Clearly, there is a strong trend toward liberalization in the field of advertising within the guidelines of DR2-101(A). Some argue that since the Spencer case, the mere fact that a degree or title is mentioned as a permissible notation under DR2-102(E), while employment experience is not, does not exclude experience as a permissible letterhead notation. Notwithstanding this possible interpretation of DR2-102(E), the Committee was unwilling to approve your proposed letterhead. Nevertheless, it is quite possible that a court might view your proposed letterhead as commercial speech and as such, protected under the First Amendment.

The foregoing opinion should not be construed to prohibit listing your previous employment or experience in a professional announcement or other form of permissible advertising.

For your information, we refer you to an opinion issued in 1985 by the Committee on Legal Ethics and Professional Responsibility of the Pennsylvania Bar Association, as well as a recent opinion issued by the New Jersey Supreme Court, In re Petition of Felmeister & Isaacs (No. A-95, N.J. Sup. Ct., l2/l0/86). Both should give you a good overview of the developments in this area of legal ethics.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.