Opinions

Ethics Opinion 224

Misleading Firm Name

A lawyer, all of whose partners die, retire, or otherwise leave the partnership, is not precluded from continuing to use the former partnership name, absent reason to believe that clients or potential clients are led by the firm name to believe that the lawyer practices in a partnership or with other lawyers.

Applicable Rules

  • Rule 7.1(a) (False or Misleading Communications)
  • Rule 7.5(a) (Use of Firm Name Violating Rule 7.1)
  • Rule 7.5(b) (Implying Practice in a Partnership)

Inquiry
B is a name partner in "A, B & C," a partnership consisting of B and C. A is dead and C is considering either becoming "of counsel" or retiring. The question asked is (1) whether the firm may continue to use its present name if as result of C's changed relationship it is no longer a partnership.

Discussion
The relevant rules are 7.1 and 7.5. Rule 7.1 provides in relevant part:

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. a communication is false or misleading if it:
     (1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or
     (2) Contains an assertion about the lawyer or the lawyer's services that cannot be substantiated.

     Rule 7.5 provides in relevant part:

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of rule 7.1.
   . . . .
      (d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

If partner C were to assume "of counsel" status and were no longer to be a partner, it might be argued that the continued use of the firm name would appear to violate Rule 7.5(d) because it implied that B practiced in a partnership when that is not the fact.[1] See also Opinion No. 189. Similarly, if C were to have no further connection with the firm, it might be argued that the continued use of the name "A, B & C" would also appear to violate Rule 7.5(d) because it would imply the existence of a partnership where there was not one in fact.

However, the crucial question is whether the mere use of a firm name containing multiple names implies the existence of a partnership either among those in the name or otherwise. There are persuasive reasons for concluding that it does not. Thus, Comment 1 to Rule 7.5 observes that "any firm name including the name of a deceased partner is, strictly speaking, a trade name," which, like any trade name, may be used if not misleading. Prior to adoption of the Rules of Professional Responsibility, DR 2-102(B) permitted a firm to use in its name the names of one or more deceased or retired members "of the firm or a predecessor firm if otherwise lawful."[2] This suggests that a multiple name firm name is not necessarily read as implying a partnership among those named in the firm name.

The remaining question is whether use of a firm name including multiple names (most or all of whom may be dead or retired) implies that the firm is a partnership. If it did, a problem would arise for small firms when only one partner remains, if the firm name could no longer be used, particularly for an interim period during which the surviving partner considers whether to obtain a new partner or attempts to do so. We do not believe that such an implication necessarily follows from use of a multi-name firm name.

A related issue is whether a single lawyer's use of a firm name with multiple names in it would violate Rules 7.1 and 7.5(a) by being false or misleading in implying that the firm consisted of more than one lawyer, when only one of the partners remains and he or she practices alone. In Opinion No. 189 the Committee concluded that the name "John Doe & Associates" would have violated the predecessor provisions of DR 2-101(B)(3) and DR 2-102(A) and (B), prohibiting "deceptive" firm names, if the attorney did not normally employ two or more associates, but would not be inherently misleading if the attorney did normally employ two or more associates. The Opinion added that if the firm received legitimate indications that use of the name was in fact misleading it would have to take steps to remedy the problem.

However, if, as we conclude, the multi-name firm does not necessarily imply the existence of a partnership, nor would it necessarily imply that B practices with other lawyers. Nevertheless, we would expect that a lawyer continuing to practice alone under a multi-person firm name will promptly inform new clients that he or she practices alone.

Our analysis thus far considers no fact other than the lawyer's continued use of the name of his former partnership. We recognize that additional facts could lead to different conclusions. For example, if the lawyer learns that clients or potential clients have been led by the firm name to believe that he or she practices in a partnership or with other lawyers, the lawyer may have a duty to take steps to dispel such misapprehensions. What evidence would demonstrate that the firm name has been misunderstood is a factual issue beyond the Committee's authority to resolve.


[1] Of course, in order not to violate Rule 7.1, if C were to assume "of counsel" status his relationship would have to satisfy the requirements applicable to that relationship. See Opinion Nos. 151, 197; ABA Formal Opinion No. 90-357 (1990).
[2] Similarly, ABA Opinion 90-357 states that a firm name can include a former partner who is now of counsel if the name was "long-established and well-recognized."

 

December 1991