That's the conclusion of this misguided opinion (Opinion 642) of the Professional Ethics Committee of the Texas State Bar.
According to the Committee, a law firm can't hire a nonlawyer to serve as Chief Technology Officer, Chief Operating Officer, or an "officer" or "principal" of any other kind. The reason? Apparently, even if these nonlawyers have no control over the delivery of legal services and do not share in the firm's legal fees, the job titles are so misleading that they are unethical. Here's the Committee's logic:
If the non-lawyer employees will not, in fact, control operations of the law firm nor own an interest in the firm, then designating these employees as “officers” or “principals” would be misleading and thus violate Rule 7.02(a), which states: “A lawyer shall not make or sponsor a false or misleading communication about the qualifications or the services of any lawyer or firm.” Identifying a person as an “officer” of or a “principal” in a law firm when the person does not, in fact, have a controlling or ownership interest in the firm would be a false or misleading communication about the firm. Furthermore, using the title “officer” or “principal” for a non-lawyer employee who does not act as an “officer” or “principal” of the firm would violate Rule 8.04(a)(3), which prohibits a lawyer from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation[.]”
This opinion strikes me as problematic for a few reasons. First, as a practical matter, the horse is out of the barn; many law firms already have nonlawyers in these positions. These law firms (and there are quite a few -- see, e.g., here and here) are now going to have a problem operating in Texas unless they re-title their key administrators. That seems pretty unlikely.
Second, the opinion offers a tortured interpretation of Texas Rules 7.02(a) and 8.04(a)(3), which are closely related to Model Rules 7.2 and 8.4 respectively. It is hard to understand how the public is misled as to the "qualifications or services of any lawyer or firm" if the firm happens to have a nonlawyer Chief Technology Officer. Is the idea that a client is going to regret retaining a law firm after learning that the nonlawyer Chief Technology Officer does not actually have control over the firm's delivery of legal services? Or is the concern that the client might be misled into thinking that the Chief Technology Officer is a lawyer? Perhaps I am missing something obvious, but I can't see the public caring much about whether the Chief Technology Officer of a law firm is a lawyer or nonlawyer as long as the person is doing a good job.
Finally, and more importantly, the opinion makes no sense as a policy matter. If law firms have to give lesser titles to people who are supposed to play critical administrative roles, how does this help clients? Won't this just make it more difficult for law firms to hire and retain talented nonlawyer administrators? And if so, don't clients ultimate suffer if their lawyers can't hire the best possible administrators? For example, if a client is sharing sensitive information with a lawyer, wouldn't the client want the most competent possible CIO to ensure that the information is protected from unauthorized access?
I am loathe to be too critical of state bar ethics opinions, but this one seems particularly troubling. In my view, this opinion is yet another unfortunate example of bar associations having a knee jerk negative reaction to the notion that nonlawyers have something important to contribute to the delivery of legal services. With opinions like this, it is no wonder that law firms are losing top nonlawyer talent to -- and having their lunches eaten by -- innovative legal service providers.