Ethics Opinion 244
Inclusion of Name of Nonlawyer Partner in Firm NameAssuming compliance with the requirements of Rule 5.4(b), the name of a nonlawyer partner may be included in the name of a law firm. However, the firm must make clear on firm stationery, business cards and professional listings that the nonlawyer partner is not a lawyer.
- Rule 5.4(b) (Practice With Nonlawyers)
- Rule 7.5 (Firm Names and Letterhead)
The inquiring lawyer, whom we will refer to as Smith, is a sole practitioner in the District of Columbia. He proposes to form a partnership with a nonlawyer, whom we will refer to as Jones, to provide legal services to clients in personal injury and property damage cases. Jones, an experienced investigator, will provide various investigative services such as photographs of accident scenes and interviews of clients and witnesses. He will also perform nonlegal research and provide administrative assistance in preparation of cases for trial and settlement negotiations. These support services will be related solely to Smith’s practice of law. Smith and Jones will enter into a written agreement that will specify that the sole purpose of the partnership is the provision of legal services to clients; that Jones will abide by the Rules of Professional Conduct; and that Smith will undertake to be responsible for Jones’s compliance.
The proposed partnership will be called “Smith & Jones” or “Smith & Jones Associates.” Alternatively, Smith may form a professional corporation, which would be called “Smith & Jones, P.A.” Such a professional corporation would be owned by Smith, and Jones would contract with the corporate entity, as well as Smith individually, for the provision of his nonlegal services in return for a share of fees. Jones would be designated as “Chief Administrator” of the corporate entity.
The questions posed by the inquiry are (1) whether the proposed arrangement comports with Rule 5.4(b); (2) whether the name of Jones, the nonlawyer, may be included in the firm name; and if so, (3) whether the firm must take affirmative steps to make clear to clients and prospective clients that Jones is not a lawyer.
First, we find that the proposed arrangement comports with Rule 5.4(b), which provides:
A lawyer may practice law in a partnership or other form of organization in which a financial interest is held or managerial authority is exercised by an individual nonlawyer who performs professional services which assist the organization in providing legal services to clients, but only if:
(1) The partnership or organization has as its sole purpose providing legal services to clients;
(2) All persons having such managerial authority or holding a financial interest undertake to abide by these rules of professional conduct;
(3) The lawyers who have a financial interest or managerial authority in the partnership or organization undertake to be responsible for the nonlawyer participants to the same extent as if nonlawyer participants were lawyers under Rule 5.1;
(4) The foregoing conditions are set forth in writing.
This rule, unique to the District of Columbia, permits lawyers to form partnerships or other organizations in which nonlawyers have a financial interest—as partners or otherwise—so long as the specified conditions are met. On the basis of the representations made by the inquiring lawyer, it appears that those conditions are met in this case. The business of Smith & Jones will be limited to the provision of legal services to clients; Jones will undertake to comply with the Rules of Professional Conduct; Smith will undertake to assure that compliance; and these undertakings will be set forth in writing.
The next question is whether Jones’s name may appear in the firm name. Nothing in Rule 5.4 or the Comment to the Rule suggests that the name of a nonlawyer partner may not be included in a firm name. The question remains, however, whether the inclusion of the name of a nonlawyer in the name of a partnership or other organization devoted to the provision of legal services is inherently misleading. Rule 7.5(a) provides that “a lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.” Rule 7.1(a), in turn, provides in pertinent part that “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.”
In Opinion No. 45 (1978), issued under the former Code of Professional Responsibility, we held that the name of a nonlawyer could not appear in a law firm name. However, that opinion was based on a construction of DR 2-102(B) as explicitly limiting firm names to those of “lawyers in the firm.”1 And it was also influenced by the explicit prohibition of DR 3-103(A), which provided that “a lawyer shall not form a partnership with a non-lawyer if any of the activities of the partnership consist of the practice of law.”
Under the Rules of Professional Conduct now in effect, however, the situation is quite different. The traditional bar against partnerships with nonlawyers has been eliminated by Rule 5.4(b). And the detailed restrictions of the Code of Professional Responsibility with respect to names of firms have been replaced in Rule 7.1 with the general injunction not to mislead. In light of these changes, we believe that it is no longer misleading to include the name of a nonlawyer partner in the firm name of a partnership that is devoted to the provision of legal services to clients and that complies in all other respects with Rule 5.4(b). The firm name of a law firm constitutes an implicit representation that the firm is engaging in legal services, but, given Rule 5.4(b), it does not inherently constitute a representation that every partner in the firm is a lawyer.
Nonetheless, we believe that if the name of a nonlawyer partner is included in the firm name, there is some possibility of misunderstanding unless an appropriate disclosure is made. In such a case the firm must make an appropriate disclosure, on firm letterhead, business cards, and professional listings, that the firm includes a nonlawyer partner. If individual names are not listed on the letterhead, the fact that a nonlawyer is a name partner must be indicated in some fashion—e.g., by adding the phrase “a partnership including a nonlawyer” after the firm name.2 Of course, in any case, if individual names are listed on the letterhead, business card or firm listing, any listed nonlawyer partner should be identified in an appropriate manner—e.g., “investigator,” “firm administrator,” “economist”—that makes clear that he or she is not a lawyer. See Opinion No. 38 (July 19, 1977) (nonlawyer patent agent employed by law firm may be listed on firm letterhead followed by the designation “patent agent”); ABA Informal Opinion 89-1527 (Feb. 22, 1989) (nonlawyer executive director may be listed on firm letterhead and business cards, so long as listing makes clear that person is a nonlawyer or responsible only for administration of the office).
1. DR 2-102(B) at the time provided, in pertinent part, that “a lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm.” (emphasis added).
2. We do not reach the question of what disclosure, if any, need be made in the case of a firm in which a nonlawyer is a partner but is not included in the firm name and is not listed on the letterhead.