Ethics Opinon 1978-4

I
QUESTION PRESENTED

The collection supervisor for a law corporation, who is apparently not a member of the Bar, uses the law firm stationery for collection letters by signing his name and noting his capacity. The letterhead contains the corporate name of the firm; no individual's name appears on the letterhead. The debtor to whom the collection letter is addressed is a private individual. The debtor's attorney sends the law corporation a letter notifying it that the debtor is represented by counsel and that the debtor has a substantial defense against the creditor client of the law corporation. Seven months later the law corporation files suit against the debtor on behalf of its creditor client. Two days thereafter the law corporation sends the debtor a second collection letter; this second letter is signed by a person who is apparently an attorney in the law corporation since his capacity is not shown and the law corporation's letterhead still contains only its corporate name.

A. May the collection supervisor use the stationery of the law corporation to send collection letters on behalf of clients of the law corporation?

B. May the law corporation attorney send a collection letter to the debtor-defendant?

II
QUESTION A
OPINIONS AND ANALYSIS

The State Bar has not ruled on the question. Other bar associations are divided on the issue, when dealing with similar situations.

It was held that an attorney who is counsel for a corporation may use the corporate letterhead in connection with its affairs where the letterhead would carry his name with a designation such as "legal counsel," but it would be improper for other officers or agents of the corporation to use such letterhead. Los Angeles County Bar Association Ethics Opinion No. 185 (1951).

Neither an attorney nor a law firm may provide or permit the use by a lay employee of a business card, designating such employee's position, if the employer-attorney or firm is identified as a lawyer or law firm. Los Angeles County Bar Association Ethics Opinion No. 346 (1975).

A lawyer may not permit a layman to use his professional stationery in the conduct of the layman's correspondence. A.B.A. Informal Opinion No. 660. (This opinion does not consider the use of the stationery by the lay employee in the business of the law firm.)

A lay office manager's name and title may not appear on a law firm's letterhead; however, the employee may use the firm's letterhead for necessary correspondence and may use her title when signing the letters. Florida Bar Opinion No. 66-40 (Fla. Ops. 384).

A corporate counsel must carefully supervise the collection program of the corporation client, which consists of the sending of collection letters over the counsel's signature and on the counsel's letterhead. Arizona Bar Opinion No. 149 (6 Ariz. B. J. 24).

A lay person employed by a law office may not be shown on office letterheads, business cards, or on other listings, but may use the firm stationery, under the supervision of a lawyer, and may sign his office correspondence with his name, provided his capacity is always indicated. Business cards of the lay employees may not show their employer's name. Philadelphia Bar Association Opinion 69-2 (161 Legal Intelligencer 1037).

III
QUESTION B
STATUTE AND ANALYSIS

A member of the State Bar shall not communicate directly or indirectly with a party whom he knows to be represented by counsel upon a subject of controversy, without the express consent of such counsel. This rule shall not apply to communications with a public officer, board, committee or body." California State Bar Rules, Rule 7-103.

Assuming that the law corporation received the letter sent to it by the debtor's attorney notifying it that the debtor was represented by counsel with respect to the debt in controversy, it seems clear that attorneys in the law corporation are deemed to have knowledge of such representation by counsel and any communication by the law corporation attorneys directly with the debtor constitutes a breach of the rules of ethics of the State Bar.

IV
CONCLUSION

A. A lay person such as the collection supervisor may be permitted to use the letterhead of the law corporation if he is an employee of the law corporation, is under the supervision of a member of the State Bar, is acting within the scope of his employment, provided the lay employee's name does not appear on the letterhead of the law corporation, and provided the lay employee's capacity is indicated.

B. The attorney for the law corporation may not communicate directly or indirectly with a private party such as the debtor, whom he knows to be represented by counsel upon a subject of controversy unless he has the express consent of such counsel prior to any communication.

This Opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents, or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.