(Approved December 14, 1990)

Issue: May a Utah lawyer who is also a certified public accountant (CPA) include a CPA designation on his professional law-office letterhead?1

Conclusion: An attorney who is (1) licensed to practice law in Utah and (2) a practicing certified public accountant licensed by the Utah Department of Commerce may include a designation of his CPA and attorney status on his professional law-office letterhead.

Discussion: There are many practicing attorneys in the United States who are also licensed as certified public accountants. The law practice of these individuals is often oriented around accounting and related matters. Accordingly, some of these individuals wish to indicate on professional law-office stationery and business cards their status as certified public accountants.2

Although formerly there were proscriptions of this practice, these constraints have largely been rendered invalid by the development of permissible attorney advertising under the First Amendment analysis of Bates v. State Bar of Arizona3 and other cases4 and by adoption of the current Rules of Professional Conduct for Utah lawyers.

Previously, Disciplinary Rule DR2-101(E), applicable to Utah attorneys, directly addressed and prohibited the practice:

[A] lawyer who is engaged in both the practice of law and another profession shall not so indicate on his letterhead, office sign, professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.5

Arguably, this provision might not have stood a commercial free-speech test under the various U.S. Supreme Court cases that have defined the scope of such rights. But the question is now moot in Utah, because the current Utah Rules of Professional Conduct, effective January 1, 1988, contains no such provision.

Section 7 of the Rules, entitled "Information About Legal Services," addresses the limitations on communications by attorneys to provide information about their practice and services. Although primarily oriented toward advertising, Rules 7.1-7.5 provide general guidelines for related communications, including letterhead information. Contrary to former DR2-102(E), there is no direct discussion of non-legal professional designations.6 Rather, the foundational guideline is: "A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services."7

To the extent that the lawyer is a licensed CPA, it is not a per se violation of the Rules to so designate this fact on the law-office letterhead. The official comment to Rule 7.2, although primarily directed at more standard advertising, permits the "public dissemination of information concerning . . . the kinds of services a lawyer will undertake."8 If the lawyer's legal services are oriented around accounting and related matters, the letterhead designation as a CPA may assist in defining the type of practice the lawyer carries on. The general applicability of Section 7, Rule 7.2 in particular, appear to be applicable to attorney letterhead as well as to "advertising," as generally considered in a media context.

Another part of the same comment to Rule 7.2 indicates that the lawyer may advertise his foreign language ability. Not entirely tongue-in-check, one might view this as applying directly to the "CPAese" spoken by certified public accountants. More fundamentally, however, the CPA letterhead designation falls into the category of communications that indicates the type of services the lawyer is competent to provide.

Further, in an age of continued expansion of fields and sub-fields of legal endeavor, the public should be well served by supplemental information about the "kind of services the lawyer will undertake," so long as the representations are truthful and not misleading.

This latter point provides the only significant caveat to the attorney-CPA on this issue: It might be construed as misleading, as that term is used in the Rules, if the CPA designation is used when the person does not satisfy the currency requirements for public accountancy, required by the Utah Department of Commerce's Division of Occupational and Professional Licensing. However, in Utah, a person is a "certified public accountant" only when "currently licensed to practice public accountancy or who has been granted a certificate as a certified public account under prior law or this chapter [58-26]."9 In addition, Utah Code Ann. § 58-26-4(1) sets forth licensure requirements, and § 58-26-7 provides for continuing professional education in order to retain licensure and to be entitled to the designation "CPA." Thus, under current Utah law (with minor exceptions), a CPA is required to maintain some level of currency-at least through continuing education. It is, therefore, sufficient to condition this advisory opinion on the attorney-CPA's satisfaction of the legal requirements to hold himself out as a CPA under Utah law.

Recent advisory opinions in New Jersey and Mississippi have addressed the attorney-CPA question in the context of the current Rules of Professional Conduct and reached the same conclusion on this issue. New Jersey has directly addressed this question:

This committee holds that the inclusion on a lawyer's letterhead of the designation "C.P.A." is no longer per se violative of the rules governing the professional conduct of attorneys, provided that the designation is accurate and not misleading. Further, there is no reason why [sic] the designation cannot be used in directory listings to the same extent as on letterheads.10

This opinion was rendered under the same Rule 7 provisions found in the Utah Rules of Professional Conduct.

In a similar holding regarding medical doctors, the Mississippi State Bar has declared that a lawyer-physician may use the designations M.D. and J.D. after his name, as well as his medical specialty, on his cards, stationery and announcements.11

Although not legally dispositive, it is also noteworthy that the Board of Directors of the American Association of Attorney-Certified Public Accountants has adopted a resolution that states, in part:

The [ABA Code of Professional Ethics] does not prohibit the simultaneous practice of accounting and law by a member licensed in both professions. Either a single or separate letterhead may be used, provided the information with respect to the CPA designation complies with [American Institute of CPAs] Rule [of Conduct] 502. If a single letterhead is used, the accounting or legal capacity in which the member is functioning, should be delineated either on the letterhead, or in the body of the letter.12

One final observation that is not a direct condition on the use of the CPA designation on a legal letterhead, but bears consideration: An attorney who performs a dual function must be alert to exercise appropriate measures in protecting the attorney-client privilege and the ability to invoke the attorney work-product doctrine to avoid disclosure of certain communications.13 A letter drawn on attorney-CPA letterhead could strengthen an adverse party's claim that these protections are not available because the attorney-CPA was not acting in the role of attorney, but rather as the client's CPA.

Summary: Under the current Utah Rules of Professional Conduct, a licensed attorney who is also a licensed, practicing CPA may include the designation of CPA on business cards, letterhead and directory listings.

Footnotes

1. This Advisory Opinion is issued pursuant to a specific request regarding CPA-attorneys. The principles and conclusions discussed in this opinion are applicable as well to other regulated or licensed professions, the concurrent practice of which is relevant to the attorney's law practice.

2. So many, in fact, that they have a national organization: American Association of Attorney-Certified Public Accountants (AAA-CPA).

3. 433 U.S. 350 (1977).

4. See, e.g., Shapero v. Kentucky Bar Ass'n, 486 U.S. 466 (1988).

5. Various state bar associations, as well as the American Bar Ass'n, previously issued advisory opinions finding the practice to be improper-often on the basis of the proscription of "self laudation." See, e.g ., ABA Informal Ethics Op. C-445 (May 1961), ABA Formal Ethics Op. 321 (March 1, 1969), ABA Formal Ethics Op. 328 (June 1972).

6. Although Rule 7.5 is entitled "Firm Names and Letterheads," it does not address the second-profession issue.

7. Utah Rules of Professional Conduct 7.1 (1988).

8. Id. 7.2, comment.

9. Utah Code Ann. § 58-26-2(5) (Supp. 1990).

10. N.J. Sup. Ct. Advisory Comm. on Prof. Ethics, Op. 589 (July 24, 1986).

11. Miss. Ethics Op. 139 (Dec. 11, 1987). This opinion was also rendered under Rule 7.

12. AAA-CPA Bd. of Dir. Resolution (June 30, 1989).

13. A related point should also be noted: The attorney who practices law in connection with another professional will probably be held to the ethical standards of an attorney in both disciplines. See Utah Ethics Advisory Opinion Comm., Op. 17 (Nov. 28, 1973); Utah Ethics Advisory Opinion Comm., Op. 5 (Jan. 13, 1972).