Denoting a Law Degree for Non-Legal Department Employees (United States)

This Wisdom of the Crowd (ACC member discussion) addresses employees who have legal degrees but are not members of the legal department or otherwise acting as lawyers for the company in their current roles who would like to note the law degree they worked so hard to obtain by using Esq. or JD in their signature line. This resource was compiled from questions and responses posted on the forum of the Small Law Department Law ACC Network.*

*(Permission was received from the ACC members quoted below prior to publishing their forum comments in this Wisdom of the Crowd resource.)

Question:

We have several employees who have legal degrees but are not members of the legal department or otherwise acting as lawyers for the company in their current roles. These employees would like to note the law degree they worked so hard to obtain by using Esq. or JD in their signature line. Some are in operational roles far removed from day-to-day legal questions, but many are in compliance functions where they are close to legal issues every day. We in the legal department are concerned that noting a legal degree will create confusion now and in the future with respect to privilege and ethics. As to privilege, we are concerned that we may encounter waiver issues based on failure to understand that these employees were not acting as lawyers. As to ethics, we are concerned these employees interacting with represented third parties could raise ethical questions based on the perception that they are acting as lawyers for the company. Please share if anyone has a creative way, such as a brief disclaimer, to allow employees with law degrees to so note in their email signature while making clear that they are not acting as lawyers on behalf of the company.

Wisdom of the Crowd:

• Response # 1: This can be tricky, especially since plenty of employees want to use their credentials (MBA, MPH, etc.) in their signature. In my various positions, I have always asked anyone not in the law department or compliance to please refrain from using the JD or Esq. for the reasons you cited. Only once has someone objected and I did not force the issue. However, she found it difficult to overcome the misimpression that she created when third parties refused to speak with her without having their counsel on the call. She quietly ditched the JD.ⁱ

• Response #2: We have always allowed non-legal department employees to use "J.D." after their names and have never encountered a problem with it, either in-house or with respect to third parties. In our case, these employees work in our research/publication and training function, so we feel it's valuable for them to use the J.D. to demonstrate their educational background. It might be a different analysis if you're talking about staff who are working in areas where they could more easily be mistaken for counsel.

• For what it's worth, I see a difference between using J.D. and "Esq." A J.D. references an academic degree, similar to an MBA, whereas I believe "Esquire" means you're licensed to practice. Even though out non-legal department lawyers are licensed (and thus entitled to use Esq.), we have them use the J.D. designation instead, with the theory being that we're referencing their qualifications.ⁱⁱ

• Response #3: There are many lawyers who have a law degree but are working in non-traditional positions. It does not erase the fact that they have a JD.

• The answer is to ensure that the title given to the person by the employer is accurate and not misleading. There are plenty of IP attorneys who list their PE credentials after their name, and they are not holding themselves out to be performing engineering work. Their title appropriately is "Counsel" (not "Counsel & Engineer"). Similarly, a non-traditional attorney would not have "Counsel" or "Attorney" in his or her title.

• For full disclosure, I once worked in a non-traditional role for a large company, in more of a compliance and contracts function. My title was "Senior Contract Administrator" and I did not use "Esq." or "J.D." While they hired my in part due to my law degree, some of the legal department attorneys personally did not consider me a "real" attorney. This was insulting and rude. Whatever you decide to do with regard to titles and whether the attorney can use J.D. or Esq., you may want to coach the legal department attorneys to be respectful of other non-traditional lawyers who work alongside them.ⁱⁱⁱ

• Response #4: I was in this very situation once years ago when I started in the Contracts group in a former company. I don't see an issue with including J.D. on an e-mail signature if there is a caveat in the signature that states something to the effect of, "The employee to whom this e-mail account belongs is part of the NAME Department of COMPANY and does not represent the Legal Department of COMPANY or COMPANY as counsel. Information contained in e-mail sent to this account are not protected by the attorney-client privilege."^iv

• Response #5: You are right to be concerned. An added complication may arise if the employee is not admitted to practice in the state in which the employee works, in which case the use of the JD reference may require a disclaimer that the person is not admitted to practice in that state. Check to see whether your state's bar or disciplinary authorities have a hotline, legal ethics opinions or other resources that might tell you what the rules of professional conduct in your jurisdiction will permit.^v

• Response #6: I honestly find it hard to fathom why anyone would want to do this, regardless of how hard they had worked for their discussed law degrees. Perhaps I'm in the minority, but I've always found the use of "Esq." to be a pretentious affectation. It also strikes me as fairly archaic in 2015. As for "JD," the next time I append those letters to my name will be the first.

• More substantively, I'm having a hard time understanding the privilege concern. If the employees are not acting as attorneys, then what privilege would they be in danger of waiving?

• With respect to the ethical issue, wouldn't it arguably be present whether or not the individual employs an honorific to advise the world that she or he in fact has a law degree? I suppose that if the employee is introduced at a meeting as "J. Smedley Farquhar, Esq., it could more likely give the other parties the impression that the employee is attending the meeting in the capacity of an attorney, but he/she IS an attorney whether or not the fact is advertised.

• But all of my confusion aside, would it be a terrible thing to simply tell these employees that they may not use a title on company materials that suggests that they may be working in a legal capacity?^vi

• Response #7: I agree with [Response #6] that the use of the ESQ and JD seem a bit much, although I have been tempted to use them at times thinking I may get more respect. I held a position where my official title was not "attorney" but I definitely operated as legal counsel for the organization and often thought perhaps I should add those initials to clarify – or get more respect. I've also supervised paralegals who have JDs and allowed them to go ahead and add JD provided their actual title was clear. I've also seen this from other companies where the email would say "Paralegal for ______". In those situations, the paralegals were all in the legal department supervised by a licensed attorney.

• When I'm negotiating a contract and find out that my business people have had prior negotiations with opposing counsel, without me, I'm not going to lie – I get a little annoyed. It often turns out that they weren't aware that this business guy was also going to be the legal counsel. I've had some deals where the person with the JD is acting in a non-legal capacity and then a month later is suddenly operating in a "legal capacity". I don't know what is going on in his organization! I don't sit in on business calls if the other side doesn't have legal representation on the call and I don't enjoy it when I find out someone who has been involved in the business negotiations is also legal counsel and its the first time I've been on the call.

• I wonder if the business people on your side think they will get more accomplished if they other side isn't having their attorney drop off the call when they don't have their legal present? Maybe I'm jaded...

• My advice would be to get below the iceberg and see why it is that they really want to use these initials. And then if the culture is to make them happy then figure out how to best frame it so it's not confusing to the legal counsel on the other side of the table.

• Perhaps their title and department must be clear every time they use JD or Esq. in their signature line.

• I'd think I'd not want to add JD to my name if I was the Director of Business Operations... just my two cents.^vii

• Response #8: There is a distinction between someone who has a degree and someone who has passed the bar and maintains their license to practice. Regardless, using "Esq." is a clear indication of a practicing attorney. Using J.D. in a strictly business role might be confusing, particularly for counsel on the other side of the deal. If someone who is serving as a financial controller also has a PhD in library sciences, does it make sense to allow them the use of that degree in their title for the company?

• Titles and degree references should be relevant to the position they hold for the company.^viii

• Response #9: It should be clear within a company that legal matters should be handled by the legal group, or managed by it, or done only with its authorization. That is really something that is necessary to make sure that the important legal issues are being addressed only by the legal people, and the company is operating as a unified entity. Within large organizations, there are some areas where non-lawyer managers hire people with legal education or experience to perform jobs where that can be a plus - tax or regulatory accounting, insurance, even property management. And since legal know-how is something that may be perceived as one of the things that got that person the job, both the manager and the law-trained non-lawyer have incentives to use it. There can be an ongoing tension as a result. However, communication and a good relationship across individuals and groups can usually make sure that the company gets the benefit of the extra knowledge without dissipating or diluting the legal function. It also helps to have top management be aware of the issue and to have it support the GC in avoiding the creation of independent legal centers. In a way, the risk could be called "avoiding the internal unauthorized practice of law". But just as in the real world, there are lots of things that can be positives for the company without crossing the legal control line.

• I agree that using "Esq" is sort of a joke these days. Also, that does tend still to communicate that one is a practicing lawyer so that should be avoided. Using JD seems to be part of the general trend to boost one's own ego by adding degrees behind the name. I'm not sure I would worry too much about that. (The more degrees the better - everyone will understand what is going on then. John Smith, Ph.D., MBA, CPA, JD doesn't seem to suggest John is practicing law, but instead just trying to impress). You could also designate the person as an informal liaison to the legal department, which might create some better ties and promote more communication. (These people sometimes secretly harbor the desire to eventually move into the legal group through the back door.)

• Think about the underlying principles you need to maintain, and don't let the other stuff get in the way.^ix

• Response #10: We actually use the "Esq." to designate attorney and non-attorney legal staff members, and I believe the ABA rules would support such interpretation as well. I also find the "JD" after a name for a non-licensed attorney to be questionable under the ABA rules, and have forbidden my staff from using it - both out of ethics concerns, but also due to the confusion of business persons supported who have no real concept of what is a licensed/unlicensed attorney, or the attorney-client privilege.

• While I agree it's sad that I've had to go with these bright line rules, it's been the only way to make things clear in a company with a workforce of our demographics.

• I should clarify that we use the "Esq." to designate BETWEEN attorney and non-attorney legal staff members. (And it should more obvious that I only allow attorneys to use Esq. It also makes it a lot easier in eDiscovery to do a search for "Esq." and exclude those under attorney-client privilege protection in CA).^x