Ethics Opinion 332
Firm Names for Solo Practitioners
A lawyer who opens a solo practice may conduct his or her business under any trade name that does not constitute a false or misleading communication about the lawyer or the lawyer’s services. The use of the word "firm" in the firm name does not inherently constitute a misleading representation about a solo practitioner. A solo practitioner must take care, however, to insure that clients and potential clients are not misled as to the nature of his or her practice.
Applicable Rules
- Rule 7.5 (Firm Names and Letterheads)
- Rule 7.1 (Communications Concerning a Lawyer’s Services)
Inquiry
The Committee has received an inquiry regarding the permissible firm names that may be adopted by a solo practitioner. We have been asked to provide guidance on the nature of acceptable firm names that comport with the Rules of Professional Conduct. In particular, we are asked, may Jane Doe, a solo practitioner without employees, practice under the name "The Doe Law Firm" or "The Advocacy Law Firm"?
Background
Rule 7.5(a) generally provides that: "A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1." D.C. Rule 7.5. Rule 7.1(a), in turn, prohibits lawyers from making a "false or misleading communication" concerning the lawyer or the lawyer’s services. A statement is false or misleading if it: contains a material misrepresentation of fact; omits a fact necessary to make the statement considered as a whole not materially misleading; or contains an assertion about the lawyer or the lawyer’s services that cannot be sustained. Id. § 7.1(a).
This general prohibition on materially misleading representations is applied to law firm names, in part, through Rule 7.5(d), which provides: "Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact." Thus, for example, lawyers who share office facilities but who are not, in fact, partners may not denominate themselves as, say, "Smith and Jones" because that title suggests a partnership in the practice of law that does not in fact exist. D.C. Rule 7.5, Comment [2]. More broadly, one may not use the name of a particular lawyer as part of the firm’s name if the lawyer is not associated with the firm or is not a predecessor of the firm. Id. at Comment [1].
Courts and other Bars have applied this Rule and its commentary in a manner that furthers the general prohibition on a misleading firm name. Thus, it is commonplace that a firm name must reflect accurately the nature of the entity that bears it and the nature of the relationship of the lawyers who are affiliated with it. A law firm, for example, may only call itself "Medical Malpractice Trial Attorneys, Inc." if it, in fact, handles malpractice cases through trial. See Phila. Ethics Op. 98-17 (1998); see also In re Shannon, 638 P.2d 482 (Or. 1982) ("Shannon and Johnson’s Hollywood Law Center" trade name is permissible because it has no tendency to mislead). For this using the word "advocacy" in a firm name is acceptable, so long as the firm in fact does advocacy (as most do) and does not limit it’s practice to, say, serving as a neutral third-party arbiter.
The possibility for confusion is particularly acute in the context of firm names that misrepresent the nature of the connection between and amongst the members of the entity so named. It is, for example, misleading to state that one is a member of a "Professional Services Group" of attorneys and accountants, where the group has no formal existence. See In re Schneider, 710 N.E.2d 178 (Ind. 1999). Conversely, if two lawyers who share offices maintain a continuing relationship akin to that of "of-counsel" association, they may hold themselves out as such, though they may not take the next step of misleadingly practicing under a trade name such as "Law Offices at X Square" which implies a unitary relationship. See N.Y. City Ethics Op. 1995-8 (1995); see also ABA Informal Op. 85-1511 (1985) (firm may name itself "The X Partnership" where X is a retired former partner).
Our own Court of Appeals added a further gloss when it construed Rule 7.5 in In re Karr, 722 A.2d 16, 22-26 (1998), reading the Rule broadly to permit identification of "partnerships" that were less than "full-fledged" ones. Karr had operated his law firm under a trade name that included the last name of William McLain ( e.g. "Karr and McLain"). McLain, however, was not an equity partner in the firm, but rather functioned, apparently, as a non-equity partner. The Court concluded that the purpose of Rule 7.5(d) is for "partners [to be] accurately identified as such . . . so that the public is not misled." Karr 722 A.2d at 25. Given that the Rules might be read to permit the identification of partnerships taking any of a number of forms recognized under law, the Court concluded that Karr’s use of McLain’s name did not constitute a "false or misleading" communication that McLain was a "partner" in the firm. Id. at 26.
Discussion
With this background in mind we turn to the question presented, which may be restated as follows: is an implicit statement that one practices in a partnership or multi-member organization made when a solo practitioner styles his or her law office as "The Doe Law Firm" or "The Advocacy Firm" or similar names?
In our view, this question is really comprised of two distinct components - first, whether the use of the word "firm" by a solo practitioner is always and inherently misleading because it necessarily contains a material misrepresentation or omits a fact that renders the statement materially misleading. In other words, we believe the first stage of our inquiry is to ask whether the use of the word "firm" is such that we may conclude that it is likely to be misleading in all or nearly all applications because it necessarily is inconsistent with solo practice. The second component of the inquiry asks whether the use of the word "firm" to describe a solo practitioner is sufficiently clear and unambiguous that it may never be deemed misleading, whatever the context.
As we discuss below, in our view neither absolute conclusion is warranted. As a general matter, the use of the word "firm" by a solo practitioner is not presumptively misleading. But practitioners electing to use this naming convention must exercise caution to avoid its use in contexts where it is misleading or is likely to be so.
Is the use of the word "Firm" inherently false or misleading?
Though we have found no law or opinions addressing this question directly, in our judgment, the use of a name such as "The Jane Doe Firm" is not inherently misleading. It does not, in our view, convey to a reasonable observer that the lawyer necessarily practices with other lawyers. Rather, in our view the use of the term ’firm’ may also be used to distinguish between the lawyer in her individual capacity, as opposed to her business or professional capacity. For example, a telephone listing for The Jane Doe Law Firm distinguishes the telephone number from Jane Doe’s residential number. The recipient of a letter from The Jane Doe Law Firm knows that a lawyer as opposed to a layperson has written to him.
To begin with, we recognize that the common usage of the word "firm" in the English language is sometimes ambiguous. People use the term both to mean "a business enterprise" and to mean "a group of more than one person in a business." Reflecting that ambiguity, the Oxford English Dictionary first defines "firm" as: "The ’style’ or name under which the business of a commercial house is transacted" - that is a definition that applies irrespective of the number of participants in the firm. However, the OED then offers, as a second definition of "firm" the following: "A partnership of two or more persons carrying on a business" -- a definition which, of course, connotes more than one participant.1
Furthermore, the Terminology section of our own Rules explicitly recognizes that the word "firm," as used in the Rules, does not necessarily suggest the presence of other legal staff. Thus, the Rules define "firm" or "law firm" to mean " a lawyer or lawyers in a private firm . . ." D.C Rules, Terminology [4] (emphasis supplied). This specific definition is, at least implicitly, a recognition that firms may consist of many lawyers or only a single practitioner.2
Where the question is whether a particular form of firm name might mislead members of the public, the public’s actual confusion (or lack thereof) seems germane to our inquiry. It is, therefore, worth asking whether the public is actually confused by the fact that a solo practitioner uses the word "firm" to describe her law practice.
The answer appears to be: "no." A cursory review of the local Yellow Pages reveals dozens of legal offices styled in the form "Doe Law Firm" comprised, from all appearances, of only a single practitioner. Moreover, when we informally inquired of the Office of Bar Counsel regarding the nature of any complaints they might have received concerning misleading law firm names, we were advised that Bar Counsel had no recollection of having received a complaint about a firm name of the form "Doe Law Firm" in the past quarter century. Though the absence of evidence can never be conclusive evidence of absence of a problem, we think the apparent lack of public confusion significant. At a minimum it buttresses our conclusion that, in the real world, the use of the word "firm" is not necessarily misleading when applied to a solo practitioner. For example, notwithstanding a name such as "Doe Law Firm" clients are unlikely to be misled into thinking they are dealing with a multi-lawyer organization when the practitioner operates out of a home or one-room office.
We can, of course, readily imagine names that one might adopt for which this analysis would not be true—where the name clearly implies that which is not true and is therefore inherently misleading in all circumstances. For example, Bar Counsel does report that they have received complaints regarding the use of names of the form "Doe & Associates". It is useful to reiterate that, as we said in Opinion No. 189 (decided under the former Code of Professional Responsibility), a solo practitioner may not practice under the name "John Doe & Associates" for the use of the word "associates" would naturally be read to necessarily imply the existence of other legal staff in the practice. See D.C. Ethics Op. 189 (1988). This prohibition remains in effect today under Rule 7.5(d) of the Rules of Professional Conduct. Cf. Disciplinary Counsel v. Furth, 754 N.E.2d 219 (Ohio 2001) (solo practitioner may not practice under his name followed by "Associates, Attorneys and Counselors at Law"); cf., Medina County Bar Ass’n v. Grieselhuber, 678 N.E.2d 535 (Ohio 1977) (solo practitioner may not style his firm "and Affiliates" or hold himself out as "Body Injury Legal Centers"). Similarly a solo lawyer using the title "Senior Attorney and Director of Services" misleads because the lawyer implies the existence of other staff. Oklahoma Bar Ass’n v. Leigh, 914 P.2s 661 (Okla. 1996).
Finally, as our Rules make clear, see Rule 7.5, comment [1], any analysis of the "Doe Law Firm" naming convention should take into account broader constitutional considerations. The Supreme Court has held that the First Amendment protects commercial speech and that the public, generally, has a right to receive truthful and non-deceptive information. See Bates v. State Bar, 433 U.S. 350 (1977) (commercial speech serves individual and societal interests in assuring informed and reliable decision-making). To be sure, a state may regulate trade names where their use is deceptive, see Friedman v. Rogers, 440 U.S. 1 (1979), but the First Amendment clearly prohibits the regulation of lawyer speech where such regulation is based merely on speculative harms. E.g. In re RMJ, 455 U.S. 191 (1982) (rejecting restriction on listing expertise); Peel v. Attorney Registration and Disciplinary Com’n of Illinois, 496 U.S. 91 (1990) (rejecting restriction on advertisement as trial specialist); Ibanez v. Florida Dept. of Business and Prof. Regulation, 512 U.S. 133 (1994) (rejecting listing of CPA qualification). As the Supreme Court has said: "[T]he States may not place an absolute prohibition on certain types of potentially misleading information. . . if the information also may be presented in a way that is not deceptive." In re RMJ, 455 U.S. at 203.
Thus, at a minimum, we believe that, in interpreting the Rules of Professional Conduct, we should err on the side of permitting lawyers to choose their own trade names unless there is a clear indication that the name is deceptive or misleading. For this reason, in our view, the naming convention "Doe Law Firm" is not per se impermissible.
The use of "firm" may be misleading in certain contexts
Our conclusion that the use of "firm" as a naming convention by a solo practitioner is not inherently misleading or false does not, however, end the inquiry. For we can readily imagine that, under particular circumstances, the use of the term could be misleading or confusing. Thus, solo practitioners who practice under a name such as the "Jane Doe Firm" must exercise caution in the conduct of their practice and, when faced with circumstances in which a client may reasonably be confused, are under an affirmative obligation to avoid any misunderstanding.
Cases and opinions on lawyer’s speech make clear that context matters. Thus, for example, while the phrase "legal clinic" is not inherently misleading, see Bates v. State Bar, 433 U.S. 350 (1977); Jacoby v. State Bar, 562 P.2d 1326 (Cal. 1977), it can be misleading in context when it implies the existence of a separate entity where none exits, see In re Shapiro, 656 N.Y.S.2d 80 (App. Div. 1996) (listing as "Accident Legal Clinic of Shapiro and Shapiro" misleading because clinic not separate from law firm and firm handled more than accident claims). Similarly, two firms may reflect their association with each other - but only in a manner that contextually makes clear the nature of their relationship. E.g., ABA Formal Op. 94-388 (1994) (firms may designate themselves as "Allied" or in a "Network" provided additional disclosure regarding nature of relationship between the firms is also made to prevent misleading client); ABA Formal Op. 84-351 (1984) (law firms may list themselves as "Affiliated" or "Associated," so long as communications regarding the nature of the firms’ relationship are clear and not misleading).
Our own opinions on related matters offer similar, cautionary advice about the need for contextual analysis. For example, in D.C. Ethics Op. 224, we wrote: "A lawyer, all of whose partners die, retire, or otherwise leave the partnership is not precluded from continuing to use the former partnership name, absent reason to believe that clients or potential clients are led by the firm name to believe that the lawyer practices in a partnership or with other lawyers." Thus, the rule there (as here) was that the firm name was not presumptively misleading (even though the lawyer named was no longer practicing in the firm), but that a lawyer who knew or reasonably should have known of any confusion on the part of clients or potential clients was obliged to correct the misimpression.
A lawyer’s obligation is not limited, however, to affirmatively correcting clients who are actually misled. As Rule 7.5(d) comment [1] makes clear, in some situations efforts must be made to avoid deception by "avoid[ing] a misleading implication." We can imagine contexts where the use of the name "Jane Doe Firm" would give rise to such a misleading implication.
One such circumstance that comes readily to mind would be a solo practitioner using the firm naming convention who shares office space and staff with other lawyers. As we noted in Opinion 303, office-sharing arrangements are rife with the potential for confusion. See D.C. Ethics Op. 303 ("Office-sharing arrangements. . . create a risk of public confusion."). That potential would seem to be magnified by the use of a potentially confusing firm name. In such a case, the unwary client might reasonably suppose that the other professionals present are also members of the practitioner’s firm, and the prudent practitioner must take steps, through affirmative representations and through language in any engagement agreement, for example, to insure that confusion does not arise. See id. ( Noting that "[i]f a potential client appears confused about the relationship among the attorneys in such an arrangement, the attorney should take steps to resolve this confusion" and requiring attorney to make an affirmative disclaimer of any affiliation with the other attorneys in the shared office space).
It bears emphasis: Our discussion of the solo practitioner sharing office space is meant to be illustrative only. There are certainly other situations where the use of the word "firm" may be misleading. The solo practitioner who elects to practice under the "Law Firm" name should do so ever mindful of the context in which his or her actions will be viewed.
Conclusion
For the foregoing reasons, we believe that a solo practitioner may practice under a trade name that uses the term "firm" or "law firm" without violating the Rules of Professional Conduct. In doing so, practitioners should exercise caution to insure that the manner in which they conduct their practice does not, in context, mislead clients or potential clients. Practitioners are also affirmatively obliged to correct any misimpression that might arise whenever they know or reasonably should know that a client may be confused.3
Inquiry No: 05-03-01
Adopted: October 18, 2005
Published: November 2005
1. Other dictionaries reflect similar ambiguity. Webster’s Tenth Collegiate, for example, defines a firm as: "1. the name or title under which a company transacts business; 2. a partnership of two or more persons that is not recognized as a legal person distinct from the members composing it; [or] 3. a business unit or enterprise." Nor does the word "company" necessarily imply multiple components. Webster’s, for example, defines it as both "a chartered commercial organization" and an "association with another."
2. Our analysis is limited, of course, to the Rules of Professional Conduct. Independent provisions of Federal or District law might otherwise provide authorization for or limitations on the trade names that a solo practitioner or other law firms may adopt and must, of course, be complied with. See, e.g., D.C. Ethics Op. 254 (1995) (authorizing use by lawyers in District of abbreviations such as "LLP," "LLC," and "PLLC" in light of statutory authorization for formation of such organizations by District law), revising D.C. Ethics Op. 235 (1993) (pre-statute prohibition on such abbreviations).
3. One member of the Committee is not satisfied with the reasoning on which this opinion relies. Although he has chosen not to file a dissenting opinion, he has requested that his disagreement with the opinion as written be formally noted.
