Washington Lawyer

Speaking of Ethics: May a Solo Practitioner Be a Firm?

From Washington Lawyer, December 2005

By Ernest T. Lindberg

Illustration by Mick Wiggins Rule 7.5 of the D.C. Rules of Professional Conduct prohibits lawyers from using firm names, letterheads, or other professional designations that violate Rule 7.1. Rule 7.1, in turn, prohibits a lawyer from making a false or misleading communication about the lawyer or his or her services. A communication that is false or misleading “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 “contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.” See D.C. Rules of Prof’l Conduct R. 7.1(a)(1), (2).

Recently, in Opinion 332 (2005), the D.C. Bar Legal Ethics Committee concluded that a solo practitioner, Jane Doe, may practice under a trade name that uses the term firm or law firm (Jane Doe Firm) without violating the D.C. Rules of Professional Conduct. The opinion cautions that practitioners must ensure that they do not mislead clients, and practitioners are affirmatively obligated to correct any misimpression that might arise “whenever they know or reasonably should know that a client may be confused.”

Although the question has not been squarely addressed in past opinions, the committee, in determining whether a solo practitioner may be a firm, examined the language of Rule 7.5(d), which states, “Lawyers may state or imply that they practice in a partnership or other organization only when it is the fact.” For example, as addressed in D.C. Ethics Opinion 303 (2001), lawyers who share office facilities but who are not in fact partners must structure their sharing arrangements in a way that does not suggest to the public that the lawyers are affiliated.

Commonly, a firm name must accurately reflect the nature of the entity that it bears and the nature of the relationship of the affiliated lawyers. A law firm may only call itself Medical Malpractice Trial Attorney, Inc. if it in fact handles malpractice cases through trial. See Phil. Ethics Op. 98-17 (1998); see also In re Shannon, 638 P.2d 482 (Or. 1982) (the name Shannon and Johnson’s Hollywood Law Center is permissible because it has no tendency to mislead). Stating, however, that one is a member of a professional services group of accountants and lawyers when in fact the group has no formal existence is misleading. See In re Schneider, 710 N.E.2d 178 (Ind. 1999).

An argument can be made that D.C. Ethics Opinion 224 (1991) could be interpreted to have reached the same result as Opinion 332. Opinion 224 considered the circumstance of a lawyer whose partners either died, retired, or otherwise left the partnership and concluded that lawyer was 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. The question addressed in Opinion 224 was whether the mere use of a firm name containing multiple names implies the existence of a partnership among those individuals identified in the firm name. Comment 1 to Rule 7.5 expresses the same conclusion: “A firm may be designated by the names of all or some of its members, where there has been a continuing succession in the firm’s identity. . . .”

The D.C. Court of Appeals construed Rule 7.5 in In re Karr, 722 A.2d 16 (1998), reading the rule broadly to permit identification of “partnerships” that were less than “full-fledged” ones. Karr had operated under a trade name that included “McLain,” the name of an individual who was not an equity partner. The court concluded that the use of McLain’s name did not constitute a “false or misleading” communication that McLain was a partner in the firm.

In arriving at the conclusion that a solo practitioner may hold him- or herself out as a firm, the Legal Ethics Committee in Opinion 332 considered, first, whether the use of the word firm by a solo practitioner is “always and inherently misleading,” and second, whether the use of the word firm to describe a solo practitioner is sufficiently clear and unambiguous that it may never be misleading. In the view of the committee, neither absolute is warranted. The committee found that “as a general matter the use of the word ‘firm’ by a solo practitioner is not presumptively misleading. But practitioners electing to use this naming convention must exercise caution to avoid its use in contexts where it is misleading or is likely to be so.”

Noting that dictionary definitions of the word firm are ambiguous, the committee also looked to the terminology section of the D.C. Rules of Professional Conduct, which defines firm or law firm to mean “a lawyer or lawyers in a private firm,” and concluded “this specific definition is, at least implicitly, a recognition that firms may consist of many lawyers or a single practitioner.”

Opinion 332 should not be construed to suggest any modification to D.C. Ethics Opinion 189 (1988), which determined a solo practitioner may not practice under the name John Doe & Associates when there are no other lawyers in the practice.

Most importantly, Opinion 332 holds that a lawyer’s obligation is not limited to affirmatively correcting clients who are actually misled. In addition to those circumstances of a solo practitioner sharing office space, there are other situations in which the use of firm may be misleading, and a practitioner should exercise caution to ensure his or her practice does not mislead clients. Practitioners are affirmatively obliged to correct any misimpression that might arise whenever they “know or reasonably should know” that a client may be confused.

Legal ethics counsel Ernest T. Lindberg and Heather Bupp-Habuda are available for telephone inquiries at 202-737-4700, ext. 231 or 232, or by e-mail at [email protected].