Naming Rights and Wrongs

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Your law firm’s letterhead can be an ethics danger zone.

Rule 7.1 of the ABA Model Rules of Professional Conduct prohibits a lawyer from making “a false or misleading communication about the lawyer or the lawyer’s services.” Model Rule 7.5 applies that general standard to firm names and letterheads. (The Model Rules are the basis for most ethics codes for lawyers at the state level.)

So when a partner leaves a firm, ethics considerations determine when the firm may continue using his or her name to identify itself. The answer generally depends on whether the partner died, retired, moved to another firm or went into another business. Most states concur with the position set forth in the comment to ABA Model Rule 7.5 that explicitly allows a law firm to continue using the name of a deceased partner in the firm’s name “where there has been a continuing succession in the firm’s identity.” Under the ABA view, a firm name that incorporates the name of a deceased partner constitutes a trade name. Model Rule 7.1 permits a lawyer or firm to adopt a trade name as long as it is not misleading and does not imply a connection with a government agency or charitable legal services organization.

Trade names typically are considered to be misleading if they misrepresent either the nature of the underlying entity or the relationship of the lawyers to that entity. The use of the name “Professional Services Group” by a sole practitioner, for example, was considered to be misleading by a state ethics committee because it implied an affiliation with other lawyers that didn’t exist.

Some states prohibit the use of trade names by law firms altogether. When a living partner leaves a firm, the circumstances of the departure determine whether the firm may continue to use the partner’s name. Generally, the firm may continue to do so if the partner retired, but using the name of a partner who has left for other reasons is considered misleading.

A few states require a firm that lists the names of its lawyers on firm letterhead to either omit the names of deceased and retired lawyers or include notations by those names indicating their status.

The Name Stays

While there is abundant authority addressing how a firm may use the name of a partner who dies or retires, it is less clear whether a firm may continue to use the name of a partner who has not severed ties with the firm altogether.

The ABA Model Rules hold that a law firm may continue to use the name of a partner who has relinquished his or her partnership responsibilities to become of counsel to the firm. Some states, however, prohibit firms from retaining the retired lawyer’s name, reasoning that to do so connotes actual partnership. States that do allow the practice require that the firm’s letterhead clearly set forth the status of the former partner. Lawyers admitted to the bar but on inactive status generally are prohibited from stating on letterhead that they are licensed, admitted to practice in a state or members of a state’s bar.

One state ethics committee required the removal of a partner’s name even though the partner was transferred to inactive status by virtue of a disability. Another state eth­ics committee permitted the continued use of the firm name where a partner maintained his active status while on a leave of absence, providing he did not practice elsewhere and was planning to return to the firm.

Law firms that wish to retain their names while a partner is on inactive status, taking a leave of absence or serving the firm in a nonpartner capacity should consult the ethics opinions in their states for guidance–and would be wise to consult the authorities in other jurisdictions, as well.

Kathryn A. Thompson is research counsel for the ABA Center for Professional Responsibility.

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