Year 1994 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
YORK
FORMAL OPINION 1994-5
COMMITTEE ON
PROFESSIONAL AND JUDICIAL ETHICS
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May 5, 1994
ACTION: FORMAL OPINION
TOPIC: Name; use of title "Esquire"
OPINION:
DIGEST: Attorney may ethically use
the title "Esq." after his or her name, even when
acting in a non-legal capacity.
CODE: DRs 1-102(A)(4); 2-101(A);
2-101(C)(1); EC 2-13.
QUESTION
May an attorney properly append
the suffix "Esq." to his or her name when not acting in
a legal capacity?
OPINION
The inquirer is counsel to a
not-for-profit organization that employs staff members and
volunteers who happen to be attorneys, but who perform non-legal
functions such as public relations, administration, or
communicating with members of the organization about the
organization's positions on particular issues. The organization
identifies these attorneys, who do not practice law on its
behalf, in its documents with the title "Esq."
following their names. The inquirer asks whether this
identification is proper and whether the attorneys may
appropriately use the title when communicating on behalf of the
organization. We answer these questions affirmatively.
The use of the title
"Esquire" has its origins in the Middle Ages. An
esquire was a candidate for knighthood, acting as attendant and
shield bearer for a knight. n1 Webster's New World Dictionary
(1980). Over time, the title became one denoting respect, rather
than a specific occupation.
n1 The word is derived from the
Latin "scutum" -- a shield, and Middle English:
"esquier" -- a shield bearer.
According to the Encyclopedia
Britannica, after the decline of the feudal system, the title of
"Esquire" was perpetuated by certain lawyers, among
them William Blackstone and Edward Coke. These lawyers drew up
lists of those they thought entitled to carry the title. The
lists included various classes of men who were sons of peers,
minor nobles, honorary knights and those who were designated with
the title "esquire" upon appointment to office. These
appointments were to both legal and non-legal offices and
included among others, "Royal Academicians." However,
it appears that the title has always been an arbitrary conferment
and never reserved exclusively to lawyers. See, e.g., Black's Law
Dictionary (6th ed. 1990) (defining "esquire" as a
title of dignity next above gentleman, and below knight; also a
title of office given to sheriffs, sergeants, and barristers at
law, justices of the peace and others; in the United States,
title commonly appended after name of attorney); Random House
Dictionary of the English Language (2nd ed. 1987) (defining
esquire as: "an unofficial title of respect having no
precise significance, sometimes placed, esp. in abbreviated form,
after a man's surname in formal written address; in the U.S.,
usually applied to lawyers, women as well as men; in Britain,
applied to a commoner considered to have gained the social
position of gentleman").
It is not clear how the title
"Esquire" came to be used so commonly (and seemingly so
exclusively) by lawyers in the United States. There is no
authority that reserves the title "Esquire" for the
exclusive use of lawyers. n2 Because neither the law nor any
established ethical rule governs the use of the title, it would
be presumptuous for any non-legislative body to purport to
regulate its use. Nonetheless, based on common usage it is fair
to state that if the title appears after a person's name, that
person may be presumed to be a lawyer.
n2 For example, New York's
Judiciary Law contains no reference to the use of the term
esquire in its provisions governing "Attorneys and
Counsellors." Indeed, it has been noted that:
an 'esquire' has no relation to
law. It is often added to the names of poets or artists; and the
term may be applied to a landed proprietor or a country squire;
that being one of courtesy. . . . Nowhere do we find that the
term 'esquire' denotes an attorney at law.
Antonelli v. Silvestri, 137 N.E.2d
146, 147-48 (Ohio App. 1955).
The only ethical question posed by
the use of the title "esquire" by lawyers acting in a
non-legal capacity is whether such use if misleading. See DR
1-102(A)(4) (providing that a lawyer shall not engage in conduct
involving dishonesty, fraud, deceit, or misrepresentation); DR
2-101(A). We do not believe it is. DR 2-101(C)(1) permits a
lawyer to use, in connection with his or her name, a designation
indicating training in the law, such as "J.D." See ABA
Formal Op. 321 (1969); N.Y. State 105(a) (1969); Maryland 85-21
(1984). Accord D.C. Op. 183 (1987); Iowa Op. 85-14 (1986). But
see Philadelphia Op. 86-98 (1986). The title "esquire"
does not legally designate an individual as a lawyer because it
is not conferred in this country as an academic degree or
license. It has, however, been adopted by lawyers by convention
as a form of designation. Thus, one using the title in the United
States is identifying himself or herself as a lawyer. But, just
as a lawyer may identify his or her professional affiliation in a
social context, see N.Y. State 105(a) (1969), and that a
non-admitted law school graduate may use the title
"J.D." on business cards and letterhead, see Maryland
85-21 (1984), the use of the title "esquire" by a
lawyer in a non-legal context does not constitute an ethical
transgression.
We would be more concerned if the
non-practicing attorneys were signing correspondence or otherwise
identifying themselves as, for example, "J. Doe,
Attorney-at-Law," as opposed to "J. Doe, Esq." A
recipient of such a communication could well conclude,
incorrectly, that the lawyer was acting in a legal capacity. EC
2-13 states in this regard that "[i]n order to avoid the
possibility of misleading persons with whom a lawyer deals, a
lawyer should be scrupulous in the representation of professional
status." If a member of the organization used the title
"attorney" in correspondence while acting in a
non-legal capacity, this might convey the impression that a legal
position is being taken on behalf of the organization or that a
legal opinion is being rendered. Similarly, if one were so
identified in meeting minutes it might convey the impression that
a member is counsel to the committee or the organization. These
concerns, however, do not affect our conclusion that the simple
use of the title "Esq." after an attorney's name is
appropriate.
CONCLUSION
For the foregoing reasons, the
question presented is answered in the affirmative.
