A recent Texas ethics opinion (#642) states that Texas law firms may not include the term “officer” or “principal” in the job titles of the firm’s non-lawyer employees. The opinion relies on Rule 5.04(d) (Ohio’s version is 5.4 (d)) that precludes lawyers from practicing in any for-profit law firm structure where “a non-lawyer is a corporate director or officer thereof.”
The policy behind the rule is to prevent non-lawyers from ever directing, impacting or influencing the professional judgment the firm lawyers render on behalf of their clients. An analogous provision is found in Rule 5.4 (c) which states a “lawyer shall not permit a person who recommends, employs, or pays the lawyer to render legal services for another to direct or regulate the lawyer’s professional judgment…
The rub for law firms, especially larger ones, is that it is common for firms to utilize non-lawyer officers to manage, for example, firm finances, firm personnel or firm marketing. These non-lawyers, who are well trained and best suited to handle these responsibilities, typically have no role in rendering legal judgments. Yet to accurately designate them as “COO” or “CFO” potentially runs afoul of Rule 5.4.
The Texas opinion goes on to state that if these “officers” will not control operations nor own an interest in the firm, then the designation of “officer” or “principal” might be viewed as misleading in violation of Rule 7.02 (Ohio’s version is 7.1) or even Rule 8.04 (Ohio’s version is 8.4(c)) which prohibits “dishonesty, fraud, deceit, or misrepresentation.” Conferring the title of “officer” on someone who will not control operations of the firm nor own an interest in the firm, could be a misleading communication about the firm.
The practical reality is that these non-lawyer “officers” perform vital functions at law firms across the country; functions that do not impact the legal judgment of the lawyers. And arguably, the fact that a firm has a “chief financial officer” does not mislead the public about whether that individual will have any say in how the lawyers represent their clients.
This issue has not been addressed in Ohio case law or ethics opinions.