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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

 

 

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).