Rutgers School of Law, OAL case ACPE589

118 N.J.L.J. 94
July 24, 1986

ADVISORY COMMITTEE ON PROFESSIONAL ETHICS

Appointed by the Supreme Court of New Jersey

OPINION 589

Lawyer's Use of "C.P.A." on Letterhead
(Overrules Opinion 447)

    This inquiry raises the question whether the designation "C.P.A." may be used on the letterhead of an attorney who is also a certified public accountant. Our Committee first considered this issue at the behest of the same inquirer in 1980, when the applicable disciplinary rule, DR 2-102(D), read as follows:
        A lawyer who is engaged in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.

We held that the explicit language of the rule plainly prohibited the proposed CPA designation on an attorney's letterhead, notwithstanding the inquirer's arguments based on Bates v. State Bar of Arizona, 433 U.S. 350 (1977) and the abandonment of comparable disciplinary code provisions in other jurisdictions. Opinion 447, 105 N.J.L.J. ll9 (1980); Opinion 447 (Supplement), 106 N.J.L.J. 69 (1980).
    The New Jersey Supreme Court then denied a petition to review our ruling, In re Professional Ethics Opinion 447, 86 N.J. 473 (1981), quoting DR 2-102(D) and saying:

This disciplinary rule is concise and unambiguous and compels the conclusion that the suggested conduct is violative of its clear wording. The inclusion upon the letterhead of an attorney at law of the designation "CPA" or other expression of licensure as a Certified Public Accountant is unquestionably the indication of "another profession" in addition to that of a practicing lawyer. Its use is contrary to the direct and simple command of this disciplinary rule. 86 N.J. at 476.

The Court did recognize that at least nine other jurisdictions and the American Bar Association had chosen to delete similar disciplinary rules, but reiterated that New Jersey was not among them. 86 N.J. at 480.
Against this background, on January 16, 1984, the Supreme Court in response to the report of its Committee on Attorney Advertising substantially amended Disciplinary Rules 2-101 through 2-105. DR 2-102(D), the above quoted rule upon which the Court and this Committee had based their respective rulings that the CPA designation cannot appear on an attorney's letterhead, was deleted in its entirety. The subject matter of former DR 2-102, minus the prohibition against the use of extralegal qualifications on letterheads, became incorporated into new DR 2-105 and subsequently, with the adoption of the new Rules of Professional Conduct on September 10, 1984, into R.P.C. 7.5, "Firm Names and Letterheads". Thus our disciplinary code, in common with those of various other states, no longer explicitly forbids an attorney from indicating on his letterhead that he also practices another profession.

The Court's comments accompanying the 1984 revisions did not discuss the deletion of former DR 2-102(D) one way or the other. See 113 N.J.L.J. 91-93 (1984). Nor is the Report of the Committee on Advertising helpful in this regard. But in view of (1) the generally expansive nature of the amendments, designed as they were to permit freer communication to the public concerning attorneys' services and qualifications; (2) the Court's recent attention to the deleted provision itself in In re Professional Ethics Opinion 447, supra.; and (3) the Court's awareness, expressed in that opinion, of a tendency to delete similar disciplinary code provisions in other jurisdictions, we do not believe that the deletion of former DR 2-102(D) was either inadvertent or in furtherance of incorporating the prohibition by implication into some other rule. The Court did suggest in In re Professional Ethics Opinion 447, supra., that the practice of including extra-legal qualifications on an attorney's letterhead "creates a potential for misperception" or a "possibility of confusion" sufficient to sustain the constitutionality of restrictions on its use, 86 N.J. at 479, but stopped short of characterizing it as the sort of "false or misleading communication" which is today forbidden by R.P.C. 7.1 and previously by every comparable disciplinary code provision which preceded it. In any event, given the history of former DR 2-102(D), if the Court had wished to retain the prohibition it surely would have said so in the course of the 1984 revisions.

For the foregoing reasons, we hold that the inclusion on a lawyer's letterhead of the designation "C.P.A." is no longer per se violative of our rules governing the professional conduct of attorneys provided of course that the designation is accurate and not misleading. R.P.C. 7.1, 7.5(a). In response to a secondary question put by the inquirer, we further see no reason why the C.P.A. designation cannot be used in directory listings to the same extent as on letterheads.

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