Answers to commonly asked questions regarding firm names
Answers to commonly asked questions regarding firm names Apr 01, 2021 By Jeffrey M. Hazen Columns The Florida Bar Ethics Department receives numerous inquiries regarding the propriety of law firm names. These inquiries are made through requests for written opinions, Ethics Hotline calls, and advertising filings. This article attempts to highlight some commonly asked questions regarding firm names.Rule 4-7.21, Rules Regulating The Florida Bar, is the ethics rule regarding firm names and letterhead. Generally, the rule prohibits use of a firm name that would otherwise violate the substantive advertising rules of The Florida Bar in Rules 4-7.11 through 4-7.15. 4-7.21(a). For example, the rule would prohibit firm names that are blatantly false or misleading (4-7.13(a)), firm names that characterize the quality of a lawyer’s representation where the characterization is not objectively verifiable (4-7.13(b)(3)), or that claim an area of practice that the lawyer or law firm do not practice or intend to practice (4-7.13(b)(4)). These are only a few examples of firm names that would violate substantive advertising rules in 4-7.11 through 4-7.15 and, thus, 4-7.21(a).One frequent question the Ethics Department receives involves use of the designation “& Associates.” Specifically, sole practitioners frequently ask if they may use the designation. If a sole practitioner uses “& Associates” as part of its firm name, this is an example of a misleading firm name. The Florida Supreme Court has addressed this issue in The Florida Bar v. Fetterman, 439 So. 2d 835 (Fla. 1983). The court in Fetterman noted the definition of an “associate” as a “salaried employee that is not a member of the law firm,” and held that it is inappropriate and misleading to use a firm name with “Associates” when the firm does not, and has not had, associates. Specific to the facts in Fetterman, the court found that because the respondent had two associates at the time the firm was founded and continued to employ at least one associate, the firm name was permissible. Thus, to use the designation “& Associates,” a lawyer or law firm must have at least two associates or continue to employ at least one associate where the firm had multiple associates at one point in time.A related issue is the use of the word “Group” in a law firm name. The Standing Committee on Advertising has addressed the issue. In order to use the word “Group,” there must be, at a minimum, two lawyers in the firm. The Ethics Department is often asked whether the inclusion of an “of counsel” lawyer is sufficient for making up one of the necessary lawyers for use of the word “Group.” If one of the required lawyers is “of counsel” to the firm, this would be sufficient to permit use of the word “Group” in the firm name. The Standing Committee on Advertising has held specifically that a sole practitioner cannot use the word “Group” as part of a firm name. For example, the firm name “Jane Smith Law Group” is impermissible where Jane Smith is, in fact, a sole practitioner. Use of “team” would also be misleading unless the firm employed more than one lawyer. On a related note, a sole practitioner may not use plural pronouns such as “we,” “us,” and “our” unless the lawyer has either multiple lawyers in the firm, full-time nonlegal staff, or both.Florida Ethics Opinion 93-7 addresses issues related to firm names. Rule 4-7.21(b) permits the use of trade names, often referred to as fictitious names or DBAs. Trade names are permissible “if the name is not deceptive and does not imply a connection with a government agency or with a public or charitable legal services organization, does not imply that the firm is something other than a private law firm, and is not otherwise in violation of rules 4-7.11 through 4-7.15.” Further, a lawyer or law firm is prohibited from using a trade name “unless the same name is the law firm name that appears on the lawyer’s letterhead, business cards, office sign, and fee contracts, and appears with the lawyer’s signature on pleadings and other legal documents.” In other words, a trade name, if used, must be used consistently throughout the lawyer or law firm’s practice. Ethics Opinion 93-7 addresses multiple issues with respect to trade names. The opinion discusses improper use of a “parallel law firm.” The opinion states as to this issue:The law firm of “Smith & Brown” creates a professional association solely for the purpose of handling personal injury matters. “The Personal Injury Firm” would be wholly owned by “Smith & Brown” or the shareholders of “Smith & Brown.” The personal injury practice would have its own letterhead, and pleadings would be signed in the name of the new entity. Business cards would contain the attorney’s name and the new entity’s name when the attorney is handling a personal injury matter. Separate books and records would be kept for the personal injury practice. “Smith & Brown” would agree to provide the new entity with employees, facilities, and equipment and in return the new entity would pay “Smith & Brown” a fee based on the amount of profit earned by the new entity. The new entity would be “parallel firm” to “Smith & Brown.” The committee believes that the creation of a “parallel firm” appears contrary to 4-7.7 [See current Rule 4-7.21] because it is deceptive and misleading contrary to 4-7.1. [See current Rule 4-7.13]. Clients and prospective clients should know the full extent of the nature of a firm’s practice. Such considerations are matters that play a significant role when a prospective client decides which firm to hire. For example, an insurance company may not wish to retain a firm that represents personal injury plaintiffs, or vice versa.Thus, if a law firm wants to use a trade name, such as “The Personal Injury Firm,” the trade name must be used throughout the law firm’s practice. Using the trade name interchangeably with another more generalized firm name would be a violation of Rule 4-7.13 and 4-7.21.Another issue discussed in 93-7 is a specific use of misleading trade names. The example used in the opinion is where a law firm falsely suggests to consumers that the firm specializes in a particular area of law and calls itself, for example, “Entertainment Law Center.” If the law firm does not actually limit its practice to entertainment law, the trade name would violate 4-7.21. The fundamental principle set forth by the Professional Ethics Committee in 93-7 is that consumers have a right to know the true nature of a law firm’s practice. The use of misleading firm names can compromise the public’s right in that regard.Rule 4-7.21 also specifically discusses the use of trade names that contain the language “legal clinic” or “legal services.” Use of these or similar language is permissible only if the lawyer’s practice is committed to providing routine services and at rates that are lower than the prevailing rate in the community. Further, depending on the trade name that is used, a law firm may need a disclaimer that reads, “a private law firm,” or something similar. For example, if a law firm used the trade name, “The Real Estate Group,” the disclaimer would be necessary. Otherwise, the actual nature of the business as a law firm would not be clear to the consumer. Thus, where the firm holds itself out to the public, the firm should state “The Real Estate Group, a private law firm.”The Ethics Department is often asked whether a lawyer who is not a partner of the law firm may have their name included as part of the firm name. The inclusion of a non-partner’s name is misleading under 4-7.21(a). The reasoning for that conclusion is that including a lawyer’s name in a firm name, such as “Smith & Jones,” suggests that both Smith and Jones are partners and owners in the law firm. Further, the Professional Ethics Committee has stated that including a non-partner’s name in a law firm name is prohibited. See Florida Ethics Opinion 74-20. The committee found that inclusion of a non-partner’s name in the firm name implies an ownership interest that does not exist. This exclusion would apply to associates, of counsel lawyers, and other similar non-partners. Other related opinions that discuss this issue are Florida Ethics Opinions 70‑55, 70‑64, 71‑58, and 72‑18. The Florida Supreme Court has addressed this issue in a discipline case, finding that it is improper to hold out as A & B, P.A. where A owns 100% of the stock. The Florida Bar v. Hastings, 523 So. 2d 571 (Fla. 1988).Also addressed in Ethics Opinion 74-20 is the question of whether a lawyer or law firm must include a corporate designation, such as PA or PLLC, as part of the firm name. For example, must a law firm be XYZ Law Firm, PLLC when the firm uses a PLLC as its corporate form? Or, may the law firm simply use the name XYZ Law Firm? Referencing applicable Florida Statutes, the Professional Ethics Committee held in 74-20 that even though the corporation statute required that the corporate name must contain the corporate designation such as PA, a law firm is permitted to practice law under its corporate name “but omitting the ‘chartered’ or ‘professional association’ or ‘P.A.’ if it first registers the name to be used in compliance with the Fictitious Name Statute.” Thus, a law firm may, but is not required to, use the firm’s corporate designation as part of the firm name. If the firm chooses to drop the corporate designation, the firm should consider whether it is complying with the Fictitious Name Statute.Another often asked question is whether a firm may continue to use the name of a deceased partner in a firm name. Florida Ethics Opinion 65-55 addresses the question. The opinion states that continued use of the name of a deceased partner in a law firm’s name is not prohibited. However, a lawyer or law firm should not continue using a deceased partner’s name in a deceptive or misleading manner that would violate Rule 4-7.21. Opinion 65-55 also addresses the question of whether a firm name may be changed to add a new lawyer’s name to the firm name after the lawyer has died, while maintaining the deceased lawyer’s name. The Professional Ethics Committee stated in 65-55 that if there is genuine continuity of the firm as it existed at the lawyer’s death, the adding of a new name is not improper. This is especially true when the added name is that of a lawyer who was associated with the firm while the deceased lawyer was a member and who has practiced with the firm continuously since that time. In Florida Ethics Opinion 72-39, the Professional Ethics Committee further held that the name of a previously unnamed partner may be added to a firm name despite the continuing use of a deceased former partner’s name. An example of these principles is demonstrated as follows:There is an existing law firm that uses the firm name Smith, Jones, & Miller. At some point, Miller is deceased. The firm may continue to use the firm name Smith, Jones, & Miller provided that the deceased partner’s name is not used in a deceptive or misleading manner. At some point the firm decides to add the name of previously unnamed partner Johnson to the firm name. The firm may permissibly use the firm name Smith, Jones, Miller, & Johnson. Subsequently, law firm associate Brown is made a partner of the law firm. The firm may then use the firm name Smith, Jones, Miller, Johnson, & Brown.Florida Ethics Opinion 00-1 addressed the question of whether a law firm may continue to use, in its firm name, the name of a retired partner who has become “of counsel” to the law firm. The opinion references Ethics Opinion 71-49, which held that “although a partner who withdraws from a firm to handle the firm’s referred trial work at an adjacent independent office may be designated ‘of counsel’ on the firm’s letterhead, it would be misleading to continue to include the former partner’s name in the firm name.” However, in 00-1 the committee found that if the retired lawyer continued to work exclusively as “of counsel” to the firm, it would not be misleading to include the of-counsel lawyer’s name in the firm name, provided that the designation “of counsel” appear with the lawyer’s name on firm letterhead. The committee made clear that this is permissible only where the retired lawyer is “of counsel” to the firm in the traditional sense, working exclusively through the firm as a “retired or semi-retired former partner who continued to be available to the firm.” Similarly, the Ethics Department advises law firms that they may keep the name of a retired partner in the firm name provided that the retired partner has either elected retired status under Rule 1-3.5 or does not practice law if in active status, and that the retired partner is designated as “retired” on firm letterhead.Another issue related to firm name usage is that of a firm website address. Today, many, if not most, law firms have an internet website. Websites have associated web addresses, also referred to as a Uniform Resource Locator or URL. Often, for various reasons, law firms desire to have a URL that is different from the law firm name. The Ethics Department advises law firms that a firm URL is not required to mirror the firm name otherwise used in the firm’s practice. Ethics opinions from other states have addressed the issue and held that the URL need not be the same as the law firm name, provided that the URL is not misleading or deceptive in a way that would violate that state’s version of Rule 4-7.21. See New Jersey Ethics Opinion 32 (2005) and Arizona Ethics Opinion 01-05 (2001). As an example, assume that a law firm name was “Jane Doe Law Firm” and the firm was engaged in a general practice with multiple practice areas. The firm could not use the URL “medmalexperts.com.” The URL would imply, inaccurately, that the firm only does medical malpractice work and, depending on the facts, may imply a level of expertise that does not exist. However, if Jane Doe Law Firm engaged only in medical malpractice cases and had a level of expertise in those type cases, the URL medmalexperts.com would be permissible, even though it did not mirror the law firm name.There are numerous potential ethics issues that arise with respect to law firm names. Rule 4-7.21 governs firm names. The rule generally prohibits the use of firm names that are false, misleading, or deceptive. The firm name problems discussed in this article relate back to the principle that a consumer has the right to know the true nature of a law firm that her or she is considering. When evaluating the propriety of a law firm name, the most important consideration, from an ethics perspective, is whether the firm name accurately portrays to consumers the true nature of the law firm’s practice.