|Oregon State Bar Bulletin NOVEMBER 2006|
By Sylvia E. Stevens
Like it or not, the practice of law is a business as well as a profession. Gone are the days when a lawyer could open an office, hang a shingle and wait for the business to arrive. Promoting the practice, whether called marketing, business development, advertising or something else, is now accepted and recognized as a critical component of a firm’s success. One small but significant aspect of promoting a practice is developing a law firm name.
The rules that govern the name under which a lawyer or law firm practices are part of the overall regulation of Information About Legal Services found in Rules 7.1 through 7.5 of the Oregon Rules of Professional Conduct. The overarching principle about communications about lawyers and the services they offer is that the communication may not be false and misleading. RPC 7.1. Subject to the general prohibition against false or misleading communications, the specific rules about law firm names and letterhead are found in RPC 7.5.
The selection of a law firm name may at first blush seem to be a simple proposition, and for many lawyers it means using their own name: e.g., Perry Mason, Attorney at Law. Were Mr. Mason to join with another lawyer to create a firm, the name issue becomes somewhat more complicated.
The general rule for law firm names is in RPC 7.5(c)(1), which prohibits a lawyer from practicing under a name that is misleading as to the identity of the lawyers practicing under the name or that contains names other than those of lawyers in the firm.1 RPC 7.5(e) similarly prohibits lawyers from holding themselves out as practicing in a law firm unless the lawyers are actually members of the firm. A name such as "A, B and C, Lawyers" violates the rule if no firm exists in which all three are members. OSB Formal Ethics Op. No. 2005-12; In re Bach, 273 Or 24, 539 P2d 1075 (1975).
Use of "and Associates" violates the rule if there is no relationship between the lawyers involved. In re Sussman and Tanner, 241 Ore. 246; 405 P.2d 355 (1965). The accused lawyers in that case were two of four solo practitioners who shared a suite of offices. The accused lawyers each practiced under their own names, but created letterhead listing, under the heading "Associates," the other three lawyers in the suite. The court held that the letterheads were misleading:
The word "Associates" has a variety of meanings. Principally through custom the word when used on the letterheads of law firms has come to be regarded as describing those who are employees of the firm. Because the word has acquired this special significance in connection with the practice of the law the use of the word to describe lawyer relationships other than that of employer-employee is likely to be misleading. To those not acquainted with this special meaning the use of the word in the manner employed by (the accuseds) might suggest that all those associated with each other were partners. Thus it is possible that the word might be misleading as to the responsibility that each of the persons named as associates has to those dealing with one of the associates under various circumstances.
The (accuseds) argue that the designation used by them is helpful in informing those dealing with (them) of the (lawyer’s)relationship to each other and serves to make it more convenient for the (accuseds) to deal with their respective clients. Even if this were a consideration to be weighed against the possibility of confusing the public, we are not convinced that the letterheads employed serve these ends in any substantial way. As we see it, (the accuseds’) dealings with their clients and with the clients of their colleagues would not be materially inconvenienced if the letterhead made no mention whatsoever of the association between the lawyers in the suite of offices used by them.
The use of "and Associates" is also improper if there are no subordinate (employee) lawyers in the firm, but only a solo lawyer and his or her support staff. In Office of Disciplinary Counsel v. Furth, 754 NE2d 219 (Ohio 2001), for instance, the court held that the firm name "(Lawyer’s Name) and Associates, Attorneys & Counselors at Law" was misleading when there was only one lawyer in the firm. The court also noted that lawyers holding themselves out as a partnership may be vicariously liable for each other’s conduct.2
Lawyers have been expressly permitted to use trade names in Oregon since 1986, first in former DR 2-102 and now by RPC 7.5(c)(2). Permissible trade names may not suggest a connection with government or with a public or charitable legal services organization, but are otherwise left to the imagination of the lawyers in the firm, subject to the prohibition against anything false or misleading. An early case authorizing the use of non-misleading trade names is In re Shannon and Johnson, 292 Ore. 339; 638 P.2d 482 (1982). The bar alleged that the accuseds’ operation of a law office under the names "Shannon and Johnson’s Hollywood Law Center" and "Hollywood Law Center, a Branch of Shannon and Johnson," violated the then-prohibition against trade names. The court disagreed:
Thus, it appears that the purpose of (the) reference to "trade names" is not to protect the lawyers who use such names, but to protect the public by prohibiting the use of names by lawyers which "would mislead laymen concerning the identity, responsibility, and status" of those who use such names. A "trade name," as that phrase is used in (the rule) is a word or phrase other than lawyers’ names which tends to mislead the public as to the identity or services of a law firm. We find that the name "Shannon and Johnson’s Hollywood Law Center," which was the "basic advertising" used by the Accuseds, has no such tendency."
Other trade names that have been considered proper (not misleading) include: "Wall Street Legal Services,"3 "Product Liability Associates,"4 and "Your Legal Power."5 Trade names that have been found to be misleading include: "University Legal Center,6" "The People’s Law Firm,"7 and "Doe and Jones Lawmart" or "Discount Legal Services of Jones and Doe."8
Retaining the names of deceased and retired lawyers in the firm name has also been permitted in Oregon since 1986, first in former DR 2-102 and now in RPC 7.5(c)(3). Such "historical" names are a kind of trade names, since they often do not reflect the names of any current firm members. The trend in recent years has been to shorten the firm name by using the names of only one or two of the founding or principal members. Thus a firm formerly known as Mason, Finch, Ironside & McBeal might practice now as Mason Finch. Many firms with shorted names have also dropped the commas and ampersands, sometimes substituting symbols (Mason Finch). If a law firm practices in more than one jurisdiction (California and Alabama, for instance), RPC 7.5(f) allows the firm to use the same name in both jurisdictions, so long as the letterhead listing of firm members indicates the jurisdictional limits of those not authorized in the jurisdiction where the office is located.
If a lawyer remains a member of a firm while not "actively and regularly practicing law,"9 the lawyer’s name must be removed from the firm name. RPC 7.5(d). This rules applies, for instance, when a member of a firm assumes public office for more than a year in a capacity that does not allow the lawyer to simultaneously practice law actively and regularly. RPC 7.5(d) is also cited for the proposition that a former judge who returns to private practice may not use titles such as "Judge," "Former Judge," or "Honorable" in the firm name (although announcements and similar materials may include a factual statement of the prior judicial service). The use of such a title would also violate the general prohibition against using a firm name that is misleading.
Another contemporary issue relating to law firm names is Internet domain names. Only two bars have addressed the subject in formal opinions. Arizona Ethics Op. No. 2001-5 concluded that, while a domain name need not be identical to the firm’s actual business name, it may not imply special competency or affiliations that are not factually true. On the other hand, Ohio Supreme Court Ethics Op. 99-4 concludes that a domain name is only a site address and not a trade name. The opinion also says, however, that "specializedpersonalinjury lawyers.com" violates Ohio’s prohibition against claiming a specialization, while "willwineverycaseforyou.com" is a misleading communication. Whether or not regulation of domain names ultimately falls within the rule governing law firm names, lawyers with Internet presences should be mindful of the overarching prohibition against misleading communications. RPC 7.1.
A nonlawyer’s name cannot be included in a firm name (see Comment (1) to ABA Model Rule 7.5), although it can be listed on firm letterhead if there is a clear indication of the person’s nonlawyer status. New York County Ethics Op. 682 (1990) goes so far as to suggest that a firm may include the name of a recent law school graduate on its letterhead if it notes that the graduate is not yet admitted to practice. Care must be taken to ensure that the designation of support staff, law clerks and law graduates pending admission is sufficiently clear to avoid misleading the public into believing that the named individuals are lawyers in the firm who are eligible to practice in the jurisdiction.
So, what’s in a name? The choice of a law firm name can be an important piece of a firm’s business development plan, chosen with deliberate care to ensure it conveys the desired impression. Care must also be taken to ensure that the firm name complies with the Rules of Professional Conduct. The rules allow wide latitude in selecting a firm name, provided that the name is not false or misleading in any respect.
1. RPC 1.0(d) defines a "firm" as lawyers practicing in "a law partnership, professional corporation, sole proprietorship or other association authorized to practice law; or lawyers employed in a private or public legal aid or public defender organization, a legal services organization or the legal department of a corporation or other public or private organization." A firm does not include an office sharer or a lawyer working for or with a firm on a limited basis.
2. See RPC 1.0(d): "…an office sharer or a lawyer working for or with a firm on a limited basis, is not a member of a firm absent indicia sufficient to establish a de facto law firm among the lawyers involved."
3. Paskowski v. DeBenedetto, 705 NYS2d 521 (NY Fam Ct 2000).
4. Philadelphia Ethics Op. 94-26 (1994).
5. Michel v. Bare, 230 FSupp2d 1147 (DNev 2002).
6. Mezrano v. Alabama State Bar, 434 So2d 732 (Ala 1983) (name misleading despite proximity to university).
7. In re Shepard, 459 NY2d 632 (AppDiv 1983) (misleading because suggests a public connection or tie to pro bono service).
8. Texas Ethics Op. 529 (1989).
9. The rule does not apply if the lawyer’s absence is for less than one year if it was contemplated that the lawyer would return to active practice in the firm within one year.
ABOUT THE AUTHOR
Sylvia Stevens is general counsel of the Oregon State Bar. She can be reached at (503) 620-0222 or (800) 452-8260, ext. 359, or by e-mail at email@example.com.
© 2006 Sylvia Stevens