Ethics Opinions

ETHICS OPINION NO. 223
OF THE MISSISSIPPI BAR

RENDERED Thursday, January 19, 1995

ADVERTISING--LETTERHEAD--PARALEGAL CERTIFICATION- It is proper for an attorney's paralegal to use the initials CLA or CLAS so long as the paralegal has actually been certified by the National Association of Legal Assistants and so long as the designation is accompanied by language indicating that the paralegal is not a lawyer.

The Ethics Committee of The Mississippi Bar has been requested to render an opinion on the following question:

May an attorney permit a paralegal who has been certified by the National Association of Legal Assistants to use the initials CLA or CLAS on legal correspondence?

In the facts presented, the requesting attorney states that:

non-lawyers who assist lawyers are identifying themselves as 'Certified Legal Assistants' based upon their passage of a test administered by a private organization known as The National Association of Legal Assistants(NALA) and are using the initials CLA or CLAS by their names.

The attorney wants to know if this is permissible under the Mississippi Rules of Professional Conduct (MRPC).

There are two rules of the MRPC which apply to the question presented. The first is Rule 7.7, Firm Names and Letterheads, which states in pertinent part that:

(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.

The second rule is, of course, Rule 7.1, Communications Concerning a Lawyer's Services, which states in part that:

A lawyer shall not make or permit to be made a false, misleading, deceptive or unfair communication about the lawyer or the lawyer's services. A communication violates this rule if it:

(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) Is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results that violate the Mississippi Rules of Professional Conduct or other law; or

(c) Compares the lawyer's services or fees with other lawyers' services unless the comparison can be factually substantiated.

The application of these two rules, along with Rule 7.6 which prohibits a lawyer from stating or implying that he is a specialist except in the areas of patent law and admiralty, has been restricted by the Supreme Court of the United States of America in two recent cases.

The first case isPeel v. Attorney Registration and Disciplinary Commission of Illinois, 496 U.S. 91, 110 L.Ed 83, 110 S.Ct. 2281 (1990). InPeel, the Court held that it was a violation of the First Amendment of the Constitution of the United States of America for the disciplinary authority of the Illinois Bar to censure an attorney for stating on his letterhead that he had been certified a civil trial specialist by the National Board of Trial Advocacy (NBTA). In its opinion, the Court noted that NBTA had a set of standards and procedures for certifying an attorney and that these included the successful completion of a day-long examination. The Court, however, also indicated that a State could screen the certifying organizations to make sure that they were reputable.

More recently, inIbanez v. Florida Department of Business and Professional Regulation, Board of Accountancy, 114 S.Ct. 2084 (1994), the Supreme Court held that lawyers could not be prohibited from stating on their letterheads that they are certified public accountants or certified financial planners, so long as the certifications are true. (Again, both of the certifications are based on stringent standards and procedures.)

In deference to thePeelcase, the Ethics Committee has ruled that an attorney may include on his letterhead the truthful statement that he has been certified by NBTA (Opinion No. 185) and that an attorney has an L.L.M. in taxation (Opinion No. 186).

With reference to paralegals, the Ethics Committee has previously held that an attorney may list the name of a paralegal on the attorney's letterhead so long as there is language stating that the paralegal is not a lawyer. (Opinion No. 93).

Therefore, the question becomes whether it is misleading (as defined by the Peel and Ibanez cases) for a paralegal to claim to be certified by NALA. The Committee believes that the answer to this question depends upon the validity of the certification process by NALA.

To determine the validity of the process, the Ethics Committee consulted with the Chair of The Mississippi Bar's Paralegal and Legal Assistant Certification & Qualification Study Committee and examined NALA's procedures for certification. The Committee found that NALA is a reputable organization and that, in order to be certified, a person must take a two-day examination consisting of seven sections, all of which must be passed. If a person passes less than four sections, then the person must retake the entire examination. If a person passes at least four sections, then the person need only retake the sections which were not passed. According to NALA, only 30% of those taking the examination pass on the first attempt. Persons who have passed the test are then entitled to use the initials "CLA," which is a registered trademark of NALA.

Based on these findings, the Ethics Committee is of the opinion that it is proper for an attorney's paralegal to use the initials CLA or CLAS so long as the paralegal has actually been certified by the National Association of Legal Assistants and so long as the designation is accompanied by language indicating that the paralegal is not a lawyer.