Posted by Jim Lindgren:
Minnesota Bar Opinon on a solo lawyer doing business as "Doe & Associates."
http://volokh.com/archives/archive_2009_07_05-2009_07_11.shtml#1247012723
In mid-June, the Minnesota Lawyers Professional Responsibility Board
issued [1]an opinion on a solo lawyer doing business as "Doe and
Associates."
OPINION NO. 20
USE OF THE WORD �ASSOCIATES� IN A LAW FIRM NAME
The use of the word �Associates� or the phrase �& Associates� in a
law firm name, letterhead or other professional designation is
false and misleading if the use conveys the impression the law firm
has more attorneys practicing law in the firm than is actually the
case.
Comment
Subject to qualifications below, the use of the word �Associates�
in a law firm name, letterhead or other professional
designation�such as �Doe Associates��is false and misleading if
there are not at least two licensed attorneys practicing law with
the firm. Similarly, the use of the phrase �& Associates� in a firm
name, letterhead or other professional designation�such as �Doe &
Associates��is false and misleading if there are not at least three
licensed attorneys practicing law with the firm.
Rule 7.5(a), Minnesota Rules of Professional Conduct (�MRPC�),
states:
A lawyer shall not use a firm name, letterhead, or other
professional designation that violates Rule 7.1. A trade name may
be used by a lawyer in private practice if it . . . is not
otherwise in violation of Rule 7.1.
Comment 1 to Rule 7.5, MRPC, states, in pertinent part, that �the
use of trade names . . . is acceptable so long as it is not
misleading.�
Rule 7.1, MRPC, states:
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 contains a material misrepresentation of fact or
law, or omits a fact necessary to make the statement considered as
a whole not materially misleading.
Comment 2 to Rule 7.1, MRPC, provides:
Truthful statements that are misleading are also prohibited by this
rule. A truthful statement is misleading if it omits a fact
necessary to make the lawyer�s communication considered as a whole
not materially misleading. A truthful statement is also misleading
if there is a substantial likelihood that it will lead a reasonable
person to formulate a specific conclusion about the lawyer or the
lawyer�s services for which there is no reasonable factual
foundation.
While the word �Associates� and the phrase �& Associates�
undoubtedly have other meanings and connotations in other contexts,
in the practice of law the word and the phrase have been used and
are perceived as referring to an attorney practicing law in a law
firm. See In re Sussman, 405 P.2d 355, 356 (Or. 1965) (�Principally
through custom the word [�associates�] 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 law the use of the
word to describe lawyer relationships other than that of
employer-employee is likely to be misleading.�); St. B. of N.M.
Ethics Advisory Comm., Formal Op. 2006-1 (2006) (�It is well
accepted in the legal community that an �associate� is an attorney
that works for a firm. �Associates,� at least in the legal context,
do not include support staff such as legal assistants or
investigators.�); Ass�n of the B. of the City of N.Y. Comm. on
Prof�l & Jud. Ethics, Formal Op. 1996-8 (1996), 1996 WL 416301
(�[T]he term [�associate�] has been interpreted by courts and other
ethics committees to mean a salaried lawyer-employee who is not a
partner of a firm.�); Utah St. B. Ethics Advisory Op. Comm., Op.
04-03 (2004), 2004 WL 1304775 (�We believe that, if a member of the
public examined a firm name such as �John Doe & Associates,� he
would conclude that John Doe works regularly with at least two
other lawyers.�).
While some members of the public may care little about the number
of attorneys practicing law at a law firm, clearly some members of
the public seeking legal counsel do care whether there is more than
one attorney at a firm available to provide legal services. �A
client may wish to be represented by a law firm comprised of
several or many lawyers, and the implications of the law firm name
may affect the client�s decision. Any communication that suggests
multiple lawyers creates the appearance that the totality of the
lawyers of the law firm could and would be available to render
legal counsel to any prospective client . . . .� Cal. St. B.
Standing Comm. on Prof�l Responsibility & Conduct, Formal Op.
1986-90 (1986), 1986 WL 69070 (opining that solo practitioners may
not ethically advertise using a group trade name such as �XYZ
Associates� unless the advertisement affirmatively discloses they
are solo practitioners). A law firm name which suggests there are
multiple attorneys to service a client�s needs when there is only
one attorney is inherently misleading.
The Board�s opinion is consistent with decisions and ethics
opinions from other jurisdictions which have held that the use of
�associates� in the name of a law firm with one practicing lawyer
is false and misleading. See, e.g., In re Mitchell, 614 S.E.2d 634
(S.C. 2005) (holding a solo practitioner made false and misleading
communications by using the word �associates� in his firm name); In
re Brandt, 670 N.W.2d 552, 554-55 (Wis. 2003) (solo practitioner
holding himself out as �Brandt & Associates� was in violation of
ethics rule prohibiting false and misleading communications);
Portage County B. Ass�n v. Mitchell, 800 N.E.2d 1106 (Ohio 2003)
(solo practitioner engaged in misleading conduct by holding himself
out as �Mitchell and Associates�); Office of Disciplinary Counsel
v. Furth, 754 N.E.2d 219, 224, 231 (Ohio 2001) (a solo
practitioner�s use of letterhead referring to his firm as �Tom
Furth and Associates, Attorneys & Counselors at Law� was
misleading); S.C. B. Ethics Advisory Comm., Op. 05-19 (2005), 2005
WL 3873354 (opining that a solo practitioner�s use of a firm name
such as �John Doe and Associates, P.A.� is misleading); Utah St. B.
Ethics Advisory Op. Comm., Op. 138 (1994), 1994 WL 579848 (�[A]
sole practitioner may not use a firm name of the type �Doe &
Associates� if he has no associated attorneys, even if the firm
formerly had such associates or employs one or more associated
nonlawyers such as paralegals or investigators.�).
The use of �Associates� or �& Associates� in a firm name,
letterhead or other professional designation by lawyers who share
office space or who associate with other lawyers on a particular
legal matter but who do not otherwise practice together as a law
firm is false and misleading.
Whether or not a law firm name using the word �Associates� or the
phrase �& Associates� is false and misleading will depend on the
particular facts and circumstances of each case. For example, there
may be circumstances where three attorneys with a law firm name
such as �Doe & Associates� may lose one of the firm�s attorneys. In
that event, if another attorney joins the firm within a reasonable
period of time thereafter, or if the firm reasonably and
objectively anticipates another attorney joining the firm within a
reasonable period of time, it is not false or misleading for the
firm to continue using �& Associates� in its name during the
interim period. If neither circumstance exists, the continued use
of �& Associates� would be considered false and misleading. In
addition, there may be circumstances where one or more of the
attorneys practicing with a firm may be working part-time. As long
as the requisite minimum number of attorneys, part-time or
otherwise, regularly and actively practice with the firm, the use
of �Associates� or �& Associates� would not be considered false or
misleading.
The proper use of �Associates� or �& Associates� in a firm name,
letterhead or other professional designation previously has not
been the subject of guidance from the Board. Therefore, the Office
of Lawyers Professional Responsibility will defer invoking this
opinion in disciplinary proceedings under Rules 7.1 and 7.5, MRPC,
until January 1, 2010. For the same reason, to the extent a lawyer
has already contracted for an advertisement or other promotional
material using a name contrary to Opinion No. 20, the continued
availability of the advertisement or other material for the
duration of the contract term should not be the basis for
discipline.
References
1. http://www.courts.state.mn.us/lprb/opinions.html#o20
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