About a year and a half ago, I discussed the use of law firm names that suggest more than one attorney work at the firm. Since that post, the State Bar of Georgia has issued Formal Advisory Opinion No. 16-3, which takes a fresh look at the issue.
The question presented was whether a sole practitioner may use a firm name that includes “Group,” “Firm,” or “& Associates”?
The short answer is that a sole practitioner is prohibited from using a firm name that includes the terms “Group” or “& Associates,” but is allowed to use a name that includes the word “Firm” in it.
The essence of the issue revolves around whether inclusion of one of those terms in the firm name would render the name false, fraudulent, deceptive, or misleading.
Sole practitioners may not use “group” in their firm name because the term would incorrectly imply that the firm has multiple lawyers. Other jurisdictions who have addressed this have reached similar conclusions. (See, e.g., Wash. State Bar Ass’n, Advisory Op. 2163 (2007); N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 732 (2000)).
Opinion No. 16-3 recognizes that the word “firm” is “not necessarily pluralistic.” And if used by a sole practitioner, it would not be inherently deceptive or misleading because a reasonable member of the public would not be led to believe that the sole practitioner necessarily practices with other lawyers.
Other jurisdictions generally agree. (See., e.g., N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 869 (2011); D.C. Bar, Legal Ethics Comm., Ethics Op. 332 (2005); Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993)).
That said, the use of the term “firm” in a sole practitioner’s firm name could be deceptive or misleading in certain contexts. Thus, solos who use “firm” in their firm name must ensure they are meeting their obligations under Rules 7.1 and 7.5.
The term “associate” has a specific meaning in the context of the legal profession, i.e., a lawyer-employee who is not a partner of the firm. Thus, a sole practitioner may not use a firm name that includes “& Associates” because, by definition, a sole practitioner does not have any associates.
Going further, solos may not use “& Associates” in their firm name to refer to partners or non-lawyer employees, such as paralegals, investigators, nurse consultants, etc., because they are not associates. In addition, solos may not use “& Associates” in their firm name to refer to lawyers with whom they have an office-sharing arrangement.
For a firm name that includes “& Associates” to be proper, there must be at least one lawyer who employs two or more associates. If not, the firm name “would be false, fraudulent, deceptive, or misleading because it would incorrectly identify the number of lawyers in the firm and misrepresent the status of the firm’s lawyers and employees.”
Most other jurisdictions that have looked at this issue agree. (See, e.g., N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 931 (2012); S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 05-19 (2005); Va. State Bar, Legal Ethics Op. 1532 (1993); Fla. Bar, Ethics Op. 86-1 (1986); Colo. Bar Ass’n Ethics Comm., Formal Op. 50 (1972)).
Though a couple of jurisdictions might allow the use of the term “& Associates” when there is only one associate employed by the firm. (See Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993); State Bar of Ariz., Comm. on Rules of Prof’l Conduct, Op. 90-01 (1990)).
What about firms that have part-time associates, of counsel attorneys, or contract attorneys?
According to Formal Advisory Opinion No. 16-3, whether a firm name can include the term “& Associates” depends on the degree to which those attorneys practice with the firm:
For example, a part-time associate who works one day every month might not qualify, but a part-time associate who works twenty-five hours every week probably would qualify. The key is not the lawyer’s title but rather whether the lawyer actively and regularly practices with the firm. If the lawyer does so, he falls within the definition of “associate” quoted above, even though he may not work full-time hours and may actually be a contractor rather than an employee.
What happens if the number of associates at the firm falls below two? Does the firm have to change its name?
In answering this question, Formal Advisory Opinion No. 16-3 adopts a flexible approach and states that “determining whether a firm name violates Rules 7.1 or 7.5 because of hiring and firing decisions will have to be made on a case-by-case basis.”
Ultimately, if a firm no longer employs at least two associates, it will have to change its name. Some factors to be considered:
- Are the requisite number of associates are hired within a reasonable amount of time or does the lawyer reasonably and objectively anticipate hiring the requisite number of associates within a reasonable amount of time? (Minn. Lawyers Prof’l Resp. Bd., Op. 20 (2009)).
- How long has the firm been without the requisite number of associates and what efforts have been made to hire more associates? (Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993)).
- What is the frequency and duration of the firm’s time without the requisite number of associates and what is the extent of the efforts made to hire more associates? (D.C. Bar, Legal Ethics Comm., Ethics Op. 189 (1988)).