Ethics Panel Says Non-Lawyers Can't Be Law Firm Officers

Scores of Texas law firm executives, including chief executive officers, chief marketing officers and chief technology officers, may soon have to give up their job titles, get law degrees or quit their jobs.
The Texas Supreme Court Ethics Committee quietly issued an ethics opinion in May that says law firms can no longer have non-lawyer professionals who have the term "officer" in their job titles. Doing so wrongly gives the impression to the public and clients that people who aren't lawyers are in charge of or are controlling legal work.

"This ethics opinion is completely divorced from the realities of today's law firms," says Jamie Smith, chairman of the San Antonio-based firm Cox Smith. "The challenge to attract the right kind of talent we need for key positions is hard enough without being hamstrung from being able to honor the people with the respect they deserve.

"This opinion could limit our ability to hire the right people, which could then adversely impact how we deliver legal services," says Smith.

Fifty-three of the state's largest law firms, including Houston-based mega-firms Andrews Kurth, Baker Botts, Bracewell Giuliani and Vinson & Elkins, have filed objections asking the ethics committee to reverse its opinion. Cox Smith is among the signers.

Enforcement of the opinion could significantly damage how their businesses are managed, the law firms jointly said in a six-page letter obtained by The Texas Lawbook.

Legal experts say that the opinion could also be interpreted as banning firms from having non-lawyers hold positions with "director" in the title, which would cover hundreds more working in Texas law firms.

"We believe they just got it wrong," said letter signatory Michael Lowenberg, general counsel at the Gardere law firm, which has hundreds of lawyers in Austin, Dallas and Houston. "Nobody is going to think that our chief technology officer is a lawyer or that he's out there giving legal advice.
"Besides, what do you call these professions? Head computer guy?" he asked.

According to the opinion, the term officer, according to the opinion, "indicates that the person holding the title has the power to control the entire law firm (in the case of chief executive officer) or significant areas of the firm's operations."

The law firms, though, said in their letter that the committee "misapplied the relevant ethical rules" and "reached an overly broad conclusion that is not supported by the rules and does not protect the public."

The letter also said the new opinion would "cause enormous problems for the day-to-day operations of law firms throughout Texas." Eliminating titles such as chief financial officer would spur law firm executives to leave for jobs at investments or accounting firms, the lawyers said, as such titles demonstrate respect.

"The committee has ascribed too much significance to the word 'officer' and, in the process, has lost sight of the purpose behind these rules," the letter, authored by Haynes and Boone general counsel Stacy Brainin, said. "These people may manage important aspects of the firm's business, but - unless they are also lawyers - they do not own equity in the firm or control how the lawyers conduct their professional activities."

"We are aware of no evidence that the public has ever been misled into believing that the mere use of the word 'officer' necessarily connotes ownership or control of the firm's lawyers," the letter states. "To the contrary, the public knows full well that chief technology officers, for example, supervise other IT employees of the firm – not the lawyers."

Several professional organizations, including the Association of Legal Administrators, the International Legal Technology Associates, the Legal Marketing Association and the American Association of Law Libraries, also sent a letter to the committee asking it to rescind the opinion.
Mark Osborn, a partner at Kemp Smith in El Paso and chairman of the nine-member Professional Ethics Committee, confirmed that he has received the letters.

"The committee is going to consider them at our next meeting, probably in the fall," says Osborn. "We receive letters from Texas lawyers asking questions and we try to answer those questions in order to give guidance."

Osborn said he couldn't comment on the specifics of the opinion.
The Texas Lawbook is an online publication that covers business law in Texas. Go to texaslawbook.net.