You have requested an opinion on the following facts: To facilitate his collection efforts, a nonlawyer employee of a department of an insurance holding company is considering using a form demand letter. Independent of in-house counsel, the nonlawyer intends at his sole discretion to routinely generate and mail the letter, even though it will bear the letterhead and facsimile signature of in-house counsel.
This opinion will address the ethical issues raised for the in-house counsel whose name and signature will be used by the nonlawyer.
The following Pennsylvania Rules of Professional Conduct are pertinent to your inquiry.
Rule 5.3(c) provides in part that:
A lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved.
Rule 5.5(a) provides that:
A lawyer shall not:
(a) aid a nonlawyer in the unauthorized practice of law.
Rule 8.4(c) provides that:
It is professional misconduct for a lawyer to:
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation.
The Committee is of the opinion that all three of these rules would be violated by the proposed conduct. If an in-house counsel permits his name and facsimile signature to be used by a nonlawyer in a completely unsupervised setting, this would be aiding that non-lawyer in the unauthorized practice of law. This issue is not a new one to ethics committees across the country, and many have held that such action does constitute the unauthorized practice of law (see Virginia State Bar opinion 586; North Dakota State Bar opinion 39; New York City Bar Association 80-26; Maryland State Bar opinion 83-71; Illinois State Bar opinion 85-7).
Independent of the unauthorized practice of law issue, an attorney who improperly permits his name and signature to be used in a letter that he has no knowledge about or approval of, is violating Rule 8.4(c), which in turn violates Rule 5.3(c)(1).
The Committee strongly urges that the proposed conduct should not be permitted by the in-house counsel, and stresses the importance of an attorney knowing and approving specific correspondence which bears his signature.