Doctor, Doctor – Give Me the News

In 1968, Ethics Opinion 344 concluded that use of the word “Doctor” by attorneys is unethical.  However, that Opinion was predicated on a total ban on attorney advertising under the Canons in effect at the time.  As the Opinion put it, “self-laudation is prohibited both because it is a type of advertising or solicitation and because it tends to lower the tone of the profession.” 

In Ethics Opinion 550 (2010), the Committee overruled the 1968 Opinion, concluding that:

Today, in light of State-Bar-approved legal specialization and lawyer advertising, the stated basis for Opinion 344 no longer exists. However, even though self-laudation is not now a significant concern, the issue addressed in Opinion 344 requires consideration of the provisions of the current Texas Disciplinary Rules of Professional Conduct (the “Rules”) that prohibit any form of communication that is false or misleading.

After consideration of Rules 7.01, 7.02, and 7.04, the Opinion noted that the Texas Disciplinary Rules of Professional Conduct do not specifically prohibit the practice:

The Committee is of the opinion that under the Rules the use of the title “Dr.,” “Doctor,” “J.D.” or “Doctor of Jurisprudence” is not, in itself, prohibited as constituting a false or misleading communication. The Committee recognizes that other professions, such as educators, economists and social scientists, traditionally use title “Dr.” in their professional names to denote a level of advanced education and not to imply formal medical training. There is no reason in these circumstances to prohibit lawyers with a Juris Doctor or Doctor of Jurisprudence degree from indicating the advanced level of their education.

There is one exception to this conclusion, however – when the context makes it misleading:

However, while use of the title alone is generally permitted, the context in which the title is used may cause use of the title to be a false or misleading communication. For example, a lawyer otherwise qualified to use the title of “Dr.” who advertises as “Dr. John Doe” in a public advertisement for legal services in connection with medical malpractice or other areas involving specialized medical issues may be making a misleading statement as to the lawyer's qualifications and may be creating an unjustified expectation about results the lawyer can achieve. Unless accompanied by an appropriate, prominent statement of qualifications and disclaimers, such use of the title “Dr.” could readily mislead prospective clients and thus violate the Rules. Compare Comment 2 to Rule 7.02.

The correct answer is D. 

However, in the realm of legal ethics and professionalism, the fact that you can do something doesn’t mean that you should. See The Texas Lawyer’s Creed (“I am committed to this creed for no other reason than it is right”).  Because the practice is rarely, if ever, utilized by attorneys, it is difficult to imagine each of the myriad of “specific circumstances” in which potential clients could misconstrue and be misled by an attorney using the title “Doctor.” 

Moreover, the likelihood of being excoriated by one’s fellow attorneys is quite high. See Elie Mystal, “Any Lawyer Who Calls Himself ‘Doctor’ Like a Ph.D. Should Get Punched in the Mouth,” Above the Law (Nov. 11, 2011).  Best to let the physicians and professors call themselves doctor while lawyers stick to the tried and true “counselor.”