Austin Law Firm
A Rose by Any Other Name...
Misleading Firm Names May Violate Model Rules
By John S. Austin
Litigation News Associate Editor
Published in Litigation News Online Vol. 27, No. 5
A law firm name that
implies a partnership where
none exists, or is otherwise
misleading to the public,
runs afoul of the ABA’s
Model Rules of Professional
Conduct, according to several
Section leaders.
“If your firm is not sharing
responsibility for clients,
the partners are not supervising
each other, and they
are not sharing liability, a
name that implies a partnership
is misleading,” says
Bruce A. Green, New York
City, the Section of Litigation’s
Liaison to the ABA
Commission on Ethics 2000.
Under Rule 7.5(d) of the
Model Rules of Professional
Conduct, “Lawyers may
state or imply that they practice
in a partnership or
organization only when that
is the fact.”
“The whole impetus of
the rule is not to mislead
the public,” says Penny J.
White, Knoxville, TN, Co-
Chair of the Section’s Ethics
and Professionalism Committee.
“The firm name is a form
of advertising. Any firm
name is a ‘trade name,’
according to the courts,”
White says.
If two lawyers are sharing
expenses and office sharing,
then they cannot represent
themselves as a partnership.
“If you're sharing offices and
not in partnership, then you
can’t call yourself ‘Smith
and Jones,’” Green says.
Bar restrictions on firm
names do not run afoul of
the First Amendment,
according to White, citing
the U.S. Supreme Court
case, Friedman v. Rogers.
“In that case, the Supreme
Court held that statutes that
prohibit trade names does
not violate the First Amendment,”
White says.
State courts have upheld
their states’ own laws similarly
restricting the use of
“If you're sharing offices and not in partnership,
then you can’t call yourself ‘Smith and Jones,’”
Green says. “It’s a rule of candor.”
“It’s a rule of candor.”
The rules do allow, however,
a firm name to contain
names of lawyers who may
have never practiced together.
Because the rule allows a
firm to retain the name of
retired partners, firm mergers
may result in firm names
that contain two individuals
who never practiced as partners,
says Leary Davis, a
professor of Law Firm Planning
at Campbell University
School of Law.
firm names. “In a New Jersey
case, the New Jersey
Supreme Court disallowed
the use of that firm’s name
because neither named partner
was licensed to practice
in New Jersey,” White says.
Different states have different
rules, warns White.
“For example, California
has nothing in its Rules of
Professional Conduct
regarding firm names,” White
says. In some states, there is
either no rule or the rule is
not enforced, she adds.
Utah also restricts the use
of names of non-Utah lawyers
in firm names. In a Utah State
Bar Ethics Opinion, Utah’s
State Bar forbids Utah law
firms from using non-Utah
lawyers in the letterhead,
even if there is a disclaimer
“not licensed to practice.”
The Utah State Bar’s position
is that the use of a name
alone would mislead, White
says.
“An old North Carolina
lawyer once advised, ‘If you
have a legal ethics question,
the answer is no,’” Davis says.
“While that’s not bad
advice, you should think
deeply about ethical questions,”
says Davis. “Ethical
dilemmas should not be
answered ‘no’ simply to
avoid an unpopular stance
or to avoid representation
of ostracized clients.”
Citations:
Friedman v. Rogers, 440
U.S. 1; 99 S. Ct. 887; 59 L.
Ed. 2d 100; (1979).
On petition for review of
Opinion of 475, 444 A.2d
1092 (N.J. 1982).
Utah State Bar Ethics
Opinion, 96-04 (April 28,
1995).