BAR ASSOCIATION OF NASSAU COUNTY
COMMITTEE ON PROFESSIONAL ETHICS
Opinion No. 1995-5
(Inquiry No. )
Disclosure of Attorney’s “House Counsel” or Employee Relationship with Insurance Company on Professional Letterhead, Business Cards, Door Placard and Building Marquee and Cover Sheet of Pleadings.
Under the Lawyer’s Code of Professional Responsibility, an insurance company’s attorneys, who are employed on a salaried basis as house counsel to, represent and defend insureds, need not identify themselves as insurance company employees on their professional letterhead, business card, and other identifying indicia. used in their law practice; however, it is not ethically improper for them to do so.
N.Y. Judiciary Law § 495
Canon 2, EC 2-13, 2-16, 2-21, 2-33
DR 2-101(A); 2-102(A), (C)
Canon 3, EC 3-1 to 3-5
DR 3-101(A), (B)
Canon 5, EC 5-1, 6-14 to 5-19, 5-21 to 5-24
DR 5-101(A); 5-105(A), (B), (C); 5-106(A); 5-107(A), (B)
Canon 9, EC 9-2
Inquiring counsel’s law office is comprised of attorneys employed as staff or house counsel for an insurance company, which refers to them as “Claim Litigation Counsel.” The attorneys are company employees and their office a division of its corporate law department. Their work is performed exclusively in defense of the company’s insureds. An introductory letter sent to the insureds, these attorneys’ clients, discloses the relationship of this office with the company; however, currently this relationship is not shown on the attorneys’ professional letterhead.
The company’s corporate law department now directs these attorneys to include the following language on their letterhead, business cards, door placard and building marquee and cover sheet for all pleadings: “Employees of the Corporate Law Department [name of insurer] Insurance Company.” The company desires to avoid omissions of a material fact and making misleading statements to insureds concerning these attorneys’ relationship with the company. Inquiring counsel is concerned about the potential effect that this line in their letterhead and other identifying indicia might have in misleading insureds regarding the attorneys’ primary duty to the insureds and the company’s responsibility for the content of the attorneys’ communications with the insureds.
Would it be unethical to include the designation “Employees of the Corporate Law Department [name of insurer] Insurance Company” on the professional letterhead and other identifying indicia of attorneys who are employees or “house counsel” of an insurance company when they are designated to defend insureds against claims made under the company’s insurance policies?
No; neither are these lawyers ethically required to do so under the Lawyer’s Code of Professional Responsibility. The principal obligation and ethical duty of such attorneys is to the insureds whom they are paid to represent, together with a secondary obligation to the insurer who employs them. These obligations include a continuing duty to keep the insureds and insurer fully informed of (1) the attorneys’ employment or other compensation relationship with the insurer, whether they are salaried employees or independent contractors for one or more than one insurer, and. of the potential conflict that may exist in this dual representation of insured and insurer, (2) any actual conflict that may arise in this dual representation and the consequences thereof, and (3) that the attorney may act only with the insured’s and insurer’s informed consent, which may be granted expressly or impliedly under the insurance policy or by subsequent consent of both parties. This duty to keep the insured and insurer informed is the attorneys’ continuing duty which should be repeated as appropriate at all reasonably necessary times during the course of the representation, and not only at its outset.
Before addressing the specific question posed by the inquiring attorney, we must first review the applicable provisions of the Code.
Relevant Code and Statutory Rules: Ethical Consideration 2-21 of the Lawyer’s Code of Professional Responsibility provides that, “A lawyer should not accept compensation or anything of value incident to the lawyer’s employment or services from one other than the client without the knowledge and consent of the client after full disclosure.” Although EC 2-33 specifically applies to “qualified legal assistance organizations providing prepaid legal services,” the same principles may be deemed to apply to lawyers employed by insurers to represent insureds:
Such participation should at all time be in accordance with the basic tenets of the profession: independence, integrity, competence, and devotion to the interests of individual clients. A lawyer so participating should make certain that the relationship [with an employer] … in no way interferes with independent, professional representation of the interests of the individual client. A lawyer should avoid situations in which officials of the organization who are not lawyers attempt to direct lawyers concerning the manner in which legal services are performed for individual members and should also avoid situations in which considerations of economy are given undue weight in determining the lawyers employed by an organization or the legal services to be performed for the member or beneficiary, rather than competence and quality of service.
The applicable disciplinary rule, DR 2-101(A), states: “A lawyer on behalf of himself or herself or partners or associates, shall not use or disseminate or participate in the preparation or dissemination of any public communication containing statements or claims that are false, deceptive, misleading or cast reflection on the legal profession as a whole.” The disciplinary rules go on to provide in DR 2-102(A):
A lawyer or law firm may use professional cards, professional announcement cards, office signs, letterheads or similar professional notices or devices, provided the same do not violate any statute or court rule, and are in accordance with DR 2-101 (quoted above], including the following:
1. A professional card of a lawyer identifying the lawyer by name and as a lawyer, and giving addresses, telephone numbers, the name of the law firm, and any information permitted under DR 2-105….
3. A sign in or near the office and in the building directory identifying the law office. The sign shall not state the nature of the practice, except as permitted under DR 2-105 [identifying practice areas and legally authorized specializations].
4. A letterhead identifying the lawyer by name and as a lawyer, and giving addresses, telephone numbers, the name of the law firm, associates and any information permitted under DR 2-105.. . . A lawyer or law firm may be designated as “General Counsel” or by similar professional reference on stationery of a client if the lawyer or the firm devotes a substantial amount of professional time in the representation of that client…. [Emphasis added.]
This last provision is most relevant to the issue in that this specific rule permits, but does not mandate nor prohibit a lawyer from identifying himself or herself as “General Counsel,” “staff counsel” or “employee” of the lawyer’s client, for which the lawyer performs a substantial amount of professional time.
Canon 3 of the Lawyer’s Code — “A lawyer should assist in preventing the unauthorized practice of law” — makes it unethical for a lawyer to assist in violating the statutory prohibition of &167; 495 of the N.Y. Judiciary Law. 2/ See also DR 3-101, which provides:
A. A lawyer shall not aid a non-lawyer in the unauthorized practice of law.
B. A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulations of the profession in that jurisdiction.
Most significant is Canon 5 — “A lawyer should exercise independent professional judgment on behalf of a client.” ECs 5-14 through 5-19 on “Interests of Multiple Clients” are particularly instructive for insurance company “house counsel” or other attorneys employed or retained by insurers to represent insureds. Among the “typically, recurring situations involving potentially differing interests are those in which a lawyer, is asked to represent … an insured and insurer…… EC 5-17. In the case of lawyers employed by a corporation, EC 5-18 of the Code admonishes, “Occasionally, a lawyer, for an entity is requested to represent a … person connected with the entity in an individual capacity; in such case the lawyer may serve the individual only if the lawyer is convinced that differing interests are not present”.3/
The relevant disciplinary rules under Canon 5 provide as follows:
Except with the consent of the client after full disclosure, a lawyer shall not accept employment if the exercise of professional judgment on behalf of the client will be or reasonably may be affected by the lawyer’s own financial, business, property, or personal interests. [DR 5-101(A).]
In the situations covered by DR 5-105(A) and (B), a lawyer may represent multiple clients if it is obvious that the lawyer can adequately represent the interest of each and if each consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer’s independent professional judgment on behalf of each. [DR 5-105(C).]
Except with the consent of the client after full disclosure a lawyer shall not:
1. Accept compensation for legal services from one other than the client. [DR 5-107(A).]
A lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal service for another to direct or regulate his or her, professional judgment in rendering such legal services. (DR 5-107(B).]4/
The Relationship Among Insurer, Insured and Their Counsel:
It is also important before discussing the specific question at issue to review the guiding, principles inherent in an attorney’s dual representation of insureds and insurer.
In Feinstein v. Attorney-General, 36 N.Y.2d 199, 205, 326 N.E.2d 288, 366 N.Y.S.2d 613, 618 (1975), the court referred to the dangers of liability insurance policies causing “unreasonable interposition” of an organization or corporation between lawyer and client:
… [I]t should be kept in mind that all existing liability insurance is a form of litigation insurance and the attenuation of the relationship between attorney and client is to a degree accepted as reasonable within supervised and supervisable professional bounds. So in this area, as in all other areas of human affairs, there are no easy absolutes to apply.5/
This reasoning appears generally consistent with abundant case law in New York recognizing this dual representation of insurer and insured, notwithstanding the potential conflict between the insurer’s and insureds’ interests, as long as there is “full disclosure of the nature and extent of any potential conflict and … the consent of the clients to continued representation . . . .” Hartford Fire Ins. Co. v. Masternak, 55 A.D.2d 472, 476, 390 N.Y.S.2d 949, 952-53 (4th Dept. 1977).
The ABA Committee on Professional Ethics first considered the issue of a lawyer representing both insurer and insured in the following inquiry: “May an attorney, employed by an insurance company exclusively, upon a salary basis, defend law suits against assureds on behalf of the insurance company, within the limits of the policy, without making any charge to the assured?” ABA Comm. on Professional Ethics, Formal Op. 282 (1950). The inquiring attorney raised the ethical issue whether this constituted the unauthorized practice of law. The committee reviewed the duties of insurer and insured under the standard automobile insurance policy: the insurer must defend any suit against the insured alleging injury and claiming damages and must pay any judgment up to the monetary limit of the policy and all expenses, costs and interest, and the insured must give prompt notice of the accident, claim or suit, assist and cooperate in opposing such claim or suit and subrogate to the insurer for any amount paid to the insured.
The ABA committee analyzed this relationship to conclude there is “a community of interest” between insurer and insured. The insurance contract “contemplates that the company, because of its contractual liability and community of interest, shall take charge of the incidents of such defense including the supervising of the litigation, . . . [including] retaining and compensating a lawyer at the company’s expense.” Id. Opining under the ABA’s old Canons of Ethics, the ABA committee concluded the lawyer is not involved in the unauthorized corporate practice of law, and the lawyer must represent insureds as clients “with undivided fidelity.” Id. The “consent and approval” of the insureds required by the Code was implied under the policy’s provisions and the insureds’ voluntary compliance with the policy’s obligation to notify the insurer of the claim and to forward legal process to the insurer. Id.7/
Thus, it has long been approved by various ethical and judicial opinions in this state and others that an insurer may retain counsel to represent insureds in defense of claims made against them which are covered or arguably covered by their insurance policies, whether or not the attorneys are separately retained by only one insurer or by more than one insurer or are directly employed as the insurer’s “house counsel,” as long as the insurer and its insured share a “community of interest” notwithstanding potentially differing interests and it is understood the lawyer owes a primary duty to the insureds.8/
The precise question posed here is whether lawyers employed by a insurance company to represent insureds are prohibited from indicating their employment status with a corporate insurer on their letterhead, business cards, and other identifying indicia in order not to mislead the public, more particularly the lay insureds whom they are employed to represent.
There are various ethics opinions that have addressed the subject of self identification of lawyers employed by corporations to represent their employer or third parties, insured or others, but none in New York has yet addressed the issue whether the attorneys are prohibited from so indicating their status as the insurer’s employees.9/
This committee has already issued three opinions concerning an attorneys designation as a corporate employee on her or his letterhead. In Bar Ass’n of Nassau County Committee on Professional Ethics Opinion 88/42, we ruled that an attorney employed as “general counsel” for a not-for-profit corporation may not indicate this organizational affiliation on letterhead used in the attorney’s separate private practice. Even though DR 2-102 permits an attorney to identify corporate or organizational affiliations on the corporation’s letterhead and business cards, etc., this may be untruthful and misleading in the context of the lawyer’s personal private practice, in that a recipient may incorrectly conclude “that the organization subscribes to, authorizes, ratifies or stands behind the communication” made in the attorney’s private practice. Id.
In Opinion 91-36, we opined that an insurer’s “house counsel”, i.e., attorneys employed by an insurer to defend its insureds, could not use the insurance company’s own letterhead and stationery in their communications with insureds, other parties and their counsel and the courts, but must use the attorney’s own letterhead. This opinion, relying on Canons 3, 4, 5 and 9, focused on the attorney’s primary duty to the insureds and the latters’ potential confusion as to the attorney’s duty to them and independence from the insurance company.10/
Our third opinion, Opinion 93-8, ruled there is no affirmative ethical duty for a lawyer to disclose a “house counsel” or employment relationship with an insurance company on the lawyer’s letterhead. Here we basically relied on Canon 2 and DRs 2-101 and 2-102, which are quoted above, to emphasize that an attorney should not advertise her or his identity in a misleading manner.11/
The recent article by Leo J. Jordan and Hilde E. Kahn, Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Torts & Ins. L.J. 25 (1994), emphasizes that, notwithstanding potential conflicts in this dual role as insurer’s employee and insured’s attorney, the first point is the attorney’s loyalty to the insured. There should, be no difference in these respects as between “inside” and “outside” counsel. This article emphasizes that, “Early disclosure prevents misunderstanding,” and, “Even when there is no likelihood of conflict, staff counsel should inform the insured that the insurance company is paying his [or her] salary.” These principles should apply likewise to, retained independent counsel without regard to whether such counsel is paid fees by one insurer or by a number of insurers. Id. at 30-31 & n. 27. The proposed guidelines suggested by these authors do not advise the use of a letterhead to disclose the employment or retainer relationship. Id. at 35 (App.).
In this situation lawyers should exercise their own sound judgment as to how best to inform insureds whom they are designated to represent that they are paid by the insurers, whether as employees or independent contractors — whether this must also be indicated on the lawyer’s own letterhead as well as in the body of an introductory letter or initial phone call to the insured. Either to mandate or to proscribe the designation “Employee of [blank] Insurance Company” on the lawyer’s letterhead as an absolute rule of legal ethics is overly simplistic. Objectively, it is arguable and difficult to perceive whether this label may elucidate or may mislead a wide range of lay persons and other lawyers, clients, adversaries, third parties and the courts. On the one hand, such a uniform designation may be deemed essential to keep the lawyer’s employment relationship in mind at all time for all audiences; on the other hand, such a designation may hamper the attorney in also representing to insureds that the attorneys’ primary duty is to them. Also complicating this contractual, fiduciary and ethical relationship between counsel, insured and insurer is that it runs counter to the usual legal rules of respondent superior and imputed knowledge of the employer that would normally prevail when a person is employed by another. To mandate that the employment relationship must be stated on all public indicia of the attorney’s practice might seem to impute full knowledge by the insurer of the client’s confidential communications and secrets and also responsibility for the attorney’s independent fiduciary actions on behalf of insureds.
As long as the lawyer fully explains this employment relationship at the outset and the potential for conflict this may represent and continues to repeat this admonition at any necessary subsequent point in the relationship, e.g., if a client dies and is succeeded by a fiduciary representative or heir, when a settlement is proposed above or below the policy limit, etc., there would seem no positive ethical duty to state the relationship in the lawyer’s letterhead and other identifications as well.12/
We respectfully disagree, therefore, with the California State Bar Standing Committee on Professional Responsibility and Conduct, Formal Opinion 1987-91, which prohibits an employee-lawyer’s communications under a “firm name, other than Law Division, or an equivalent thereof.” If the introductory letter to insureds properly and fully discloses this relationship, we fail to understand that the letterhead would be misleading if it did not also indicate this relationship. For the same reason we reject the similar reasoning of the Virginia State Bar Standing Committee on Legal Ethics, Op. 509 (1983), which makes an invidious distinction between insurers’ employee-attorneys and their privately retained attorneys.
Although there may be some merit from the point of view of an insurance company doing business nationwide that the various state legal ethics opinions conform to a uniform practice in either prohibiting or mandating that an insurer’s staff lawyers be identified as such on their letterhead, we believe such inflexible rules to be unsound as applied to the myriad of circumstances in which a lawyer employed by a corporation may practice law.
(Approved Executive Committee on 3/7/95; Approved Full Committee on 4/5/95.)
l/ Canon 2 generally provides that, “A lawyer should assist the legal profession in fulfilling its duty to make legal counsel available.” Ethical Consideration 2-13 of the Code also provides in relevant part: “In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should be scrupulous in the representation of professional status.” And EC 2-16 reads: “Persons unable to pay all or a portion of a reasonable fee should be able to obtain necessary legal services, and lawyers should support and participate in appropriate activities designed to achieve that objective.” For example, EC 2-20 provides that, “Contingent fee arrangements in civil cases have long been commonly accepted in the United States in proceedings to enforce claims.” As against this settled practice in representing tort plaintiffs, a leading treatise on legal ethics notes that, “Very little personal injury litigation is conducted against uninsured defendants.” Charles W. Wolfram, Modern Legal Ethics § 8.4.1, at 428 (1986).
2/ Section 495 of the N.Y. Judiciary Law provides in subdivision 1 in relevant part that:
No corporation or voluntary association shall (a) practice or appear as an attorney-at-law for any person in any court in this state or before any judicial body, nor (b) make it a business to practice as an attorney-at-law, for any person, in any of said courts, nor
(e) hold itself out to the public as being entitled to practice law, or to render legal services or advice, nor
(d) furnish attorneys or counsel, nor …
(g) assume, use o; advertise the title of lawyer or attorney, attorney-at-law, or equivalent terms in any language in such manner as to convey the impression that it is entitled to practice law or to furnish legal advice, services or counsel, nor
(h) advertise that either alone or together with or by or through any person whether or not a duly or regularly admitted attorney-at-law, it has, owns, conducts or maintains a law office or an office for the practice of law, or for furnishing legal advice, services or counsel.
This statute is not defunct or to be ignored. See our recent Op. 95-3, discussing § 495. First enacted in 1909, Penal Law of 1909, § 280, added by N.Y. Sess. Laws, 1909, ch. 483, it was last amended in 1983, N.Y. Sess. Laws, 1983, ch. 505, § 5 (eff. 90 days after July 19, 1983), to authorize foreign professional service corporations to do business in this state. Subdivision 5 provides this section “shall not … prohibit a corporation or voluntary association from employing an attorney or attorneys in and about its own immediate affairs or in any litigation to which it is or may be a party.” It also provides that this section shall not be construed to prevent a corporation or association from providing information or clerical services to a lawfully practicing attorney, provided that the attorney “shall maintain full professional and direct responsibility to his clients for the information and services so provided.”
3/ The dangers and corresponding safeguards of lawyers retained by insurers to represent insureds are further explained in EC 5-21 to 5-24.
4/ Canon 9 — “A lawyer should avoid even the appearance of professional impropriety” -is also relevant here. For example, EC 9-2 instructs that, “In order to avoid misunderstandings and hence to maintain confidence, a lawyer should fully and promptly inform the client of material developments in the matters being handled for the client.”
5/ Except for one jurisdiction, the “unauthorized practice of law,” prohibited by many state statutes similar to § 495, has been interpreted to permit insurance companies to employ salaried counsel, as well as independently retained counsel, to represent insureds in defense of claims arguably covered by the insurers’ policies. See cases and authorities cited by Leo J. Jordan and Hilda E. Kahn, in Ethical Issues Relating to Staff Counsel Representation of Insureds, 30 Tort & Ins. Law J. 25, 27-28 & nn. 7-13 (1994). The reasoning is that representation of insureds is generally consistent with simultaneous representation of the insurer in defeating or minimizing claims against the insureds. This committee does not opine on questions of law; however, Judiciary Law § 495, subdivision 5, expressly permits corporations to employ lawyers “in and about its own immediate affairs or in any litigation to which it is or may be a party.” See n.2 supra.
6/ The first ethics committee opinion dealt with an insurer retaining and paying counsel to represent the adverse party in obtaining judicial approval for compromises of infants’ claims. Ass’n of the Bar of the City of New York Comm. on Professional Ethics, Op. 151 (1930). A settlement had first been agreed upon between the insurer and the infant’s parent or guardian, and New York law and court rules required such compromises to be fully disclosed to and approved by the court, together with a retained attorney’s compensation. The insurer retained and paid the attorney for examining the file and preparing the compromise order. The New York City committee opined that, “[T]hough it does not feel that the practice is to be recommended, [it] sees no professional impropriety in the attorney acting in the manner indicated by the question, provided the procedure outlined in the Matter of Wilbur, 228 A.D., 197, [239 N.Y.S. 483,] 1st Dept. , is followed.” There the Appellate Division had guardedly approved this practice in dismissing disciplinary charges brought by three bar associations against an attorney engaging in this practice. The court relied on the lack of proof that any settlement was inadequate, that no claimant was dissatisfied, no litigant complained and nobody was deceived. See also ABA Comm. on Professional Ethics, Formal Op. 235 (1941).
7/The New York State Bar Association’s Committee on Professional Ethics similarly ruled that, “[I]t is proper for an insurance carrier to hire an attorney as house counsel to defend its assureds.” NYSBA Comm. on Professional Ethics, Op. 109 (1969). See also NYSBA Comm. on Professional Ethics, Op. 519 (1980).
8/For discussions of the situations where an actual conflict may develop and the attorney’s duty to resolve such conflicts by mutual consent upon full disclosure or to withdraw from the representation in favor of new independent counsel selected by the insured and paid by the insurer, see, e.g., Charles W. Wolfram, Modern Legal Ethics § 8.4 (1986); Jordan & Kahn, supra, at 29-34. See also Public Service Mutual Ins. Co. v. Goldfarb, 53 N.Y.2d 3929 401 & n.*g 425 N.E.2d 810, 442 N.Y.S.2d 422, 427 & n.* (1981); Prashker v. United States Guar. Co., 1 N.Y.2d 584, 593, 136 N.E.2d 8719 154 N.Y.S.2d 910, 917 (1956); 69th St. and 2d Ave. Garage Assoc. v. Ticor Title Guar. Co.,__A.D.2d __, __ N.Y.S.2d ___, N.Y.L.J., Jan. 30, 1995, p. 25, col 3 (lst Dept. Jan. 26, 1995); Softel, Inc. v. Dragon Med. & Scientific Comm’ns, S.D.N.Y. File No. 87 Civ. 0167, N.Y.L.J., Feb. 27, 1995, p. 1, col. 3; ABA Comm. on Professional Ethics, Formal Op. 231 (1941); NYSBA Comm. on Professional Ethics, Op. 73 (1967); N.Y. County Lawyers’ Ass’n Comm. on Professional Ethics, Op. 669 (1989); id., Op. 659 (1983); Cal. State Bar Standing Comm. on Professional Responsibility and Conduct, Formal Op. 1987-91 (1987).
9/ In 1977 the New York City Bar Association’s Committee on Professional Ethics expressly disapproved a proposed practice of full-time employees of a corporate law department who planned to use at the top of their letterhead “A, B & J Attorneys at Law” in the performance of their legal work on behalf of their corporate employer. Ass’n of the Bar of the City of N.Y. Comm. on Professional Ethics, Op. 892 (1977). The committee opined this was unethical primarily on the ground that the letterhead held out these lawyers as a law partnership in violation of DR 2-102(C). Because the express purpose of using a letterhead with the corporation’s address, but not its name or identity as the lawyers’ employer, was to tend to sound more impressive to recipients, the committee ruled this “would be improper under the circumstances” and “in the context of the use proposed,” because “a lawyer may not properly be a party to what may well involve deception,” citing DR 1-102(A)(4) and DR 7-102(A)(7). See also N.J. Supreme Ct. Advisory Comm. on Professional Ethics, Op. 593 (1986); Tex. State Bar Professional Ethics Comm., Op. 478 (1991). The City Bar committee also added:
We do not mean to suggest that a lawyer who is house counsel for a corporation must always use a letterhead identifying his connection with his corporate employer. He certainly need not do so if he is representing clients other than the corporation, or is not corresponding on the corporation’s business. But we believe house counsel should not fail to identify his connection with his corporate employer in a letterhead or in the text of a letter, if, under the circumstances, the failure would be likely to mislead the recipient of the letter. [Emphasis added.]
In a supplement to this opinion the City Bar committee repeated that in certain circumstances there is no requirement that a lawyer who is practicing law as a corporate employee must use letterhead identifying himself as such when not acting as the corporation’s attorney and when there is no deceptive purpose or effect. The committee clarified that:
[T]his Committee does not proscribe all use of individual letterheads by attorneys in the employ of corporations. There may, indeed, be instances, where a lawyer who is inside counsel for a corporation need not use a letterhead identifying his connection with the corporate employer when the lawyer is writing on the corporation’s business.
10/This committee may have written too broadly in stating “It is not deceiving for an attorney to use the name of a law firm at the top of its stationery even though the insurance company pays the attorney.” We did not intend to endorse, for example, the use of a partnership name or a series of names implying a partnership for attorneys who are employed full-time by an insurance company. All that this opinion ruled is that attorneys, whether full-time employees or independent contracting firms, may not use insurance company stationery in their practice of law. See also Fla. State Bar Ass’n Comm. on Professional Ethics, Op. 78-6 (1978).
11/We may have misstated Opinion No. 88-42 in referring to it as totally proscribing listing a client’s name in the attorney’s letterhead as being necessarily misleading in all circumstances. As explained above, this committee proscribed an attorney’s use of his title with and employment by an organization only in the attorney’s unrelated private practice, when to do so might mislead clients to believe the organization authorized or ratified the contents of any communications in the attorney’s representation of private clients.
12/There may be other sound reasons not to use the employer-insurer’s name in the lawyer’s letterhead in correspondence with adversaries and their counsel and third parties. This relationship may be a fact, which if disclosed, may be perceived as prejudicial to both insurer and insureds in certain circumstances. Also, we see no sound ethical reason for indicating in a lawyer’s letterhead and professional cards, etc., the mode of an attorney’s compensation from the insurer, whether as wages or fees, or whether one or more than one insurer may pay the lawyer’s compensation.