April 21, 2021 – Does your firm or business name meet ethical standards? Here are some answers to the questions regarding firm names and letterheads.

Question

I share office space with another lawyer. We work to keep our practices separate, and do not share any information about our clients – so we consider ourselves to be in an “office sharing” arrangement and definitely not a firm.

The lawyer with whom I share space recently suggested that we start using marketing materials that referred to our arrangement as “Smith & Jones,” with a clear disclaimer that we are not a firm and simply have an office sharing arrangement.

My office mate thinks that the use of the disclaimer makes the idea permissible, but I am worried.

Is a disclaimer enough to permit us to use a name like “Smith & Jones” when we are not a firm?

Answer

The March 2021 dilemma, Law Firm Names When Named (Retired) Partner Practices Elsewhere, discusses the rules that govern firm names – specifically SCR 20:7.5 and SCR 20:7.1 – in connection with the use of retired or deceased named partners.

In this column, I discuss a few other examples of firm names that are considered to be misleading – and hence in violation of SCRs 20:7.1 and 20:7.5.

The scenario posed in the question is based upon Wisconsin Ethics Op. E-90-1. The opinion first notes that SCR 20:7.5(d) is directly on point:

If lawyers or law firms associate only for the purpose of sharing office space, equipment, library, personnel, or other resources, such lawyers or law firms are prohibited from sharing the same letterhead. See ABA/BNA Lawyers’ Manual on Professional Conduct § 81:3004 (1989). SCR 20:7.5(d) is directly on point: ‘‘Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.’’ The comment to SCR 20:7.5(d) states: ‘‘With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact partners, may not denominate themselves as, for example, ‘Smith and Jones,’ for that title suggests partnership in the practice of law.’’

With respect to the disclaimer, the opinion states:

Use of disclaimers following a listing of individual lawyer or law firm entities does not necessarily avoid violation of SCR 20:7.1 or SCR 20:7.5(d). See generally Lawyers’ Manual, supra. We believe that it is unlikely that the public generally will consider or understand the significance to them of such disclaimers or that that significance will be candidly and consistently explained to prospective clients by lawyers holding themselves out in this manner. In sum, if lawyers want to appear to be a law firm, this committee believes that SCR 20:7.5(d) requires them to be a law firm. See also generally Committee on Professional Ethics Formal Opinion E-86-2, ‘‘Office Sharing Arrangement’’ (1986).

Unsurprisingly, using a name that is commonly understood to designate association in a firm – such as “Smith & Jones” – cannot be rendered non-misleading simply by disclaiming that it is not what it appears to be.

Similar problems arise when lawyers use terms that imply a plural, such as “& Associates” or “Experienced Trial Lawyers,” when the lawyer is a solo practitioner.¹ Further, “associates” cannot be nonlawyers.² Solo practitioners may, however, refer to their practices as “firms.”³

Another potential problem involves the use of the term “of counsel,” which was discussed in the Wisconsin Lawyer magazine and in Wisconsin Ethics Op. E-93-1 (1993). Unless the lawyer in question has the requisite close, continuing, regular, and personal relationship with the law firm, such that the lawyer is treated as a member of the firm for purposes of imputation of conflicts pursuant to SCR 20:1.10, the use of the term “of counsel” will be considered misleading.⁴

Finally, lawyers who practice in firms organized as limited liability entities are required to include a written designation of the firm’s limited liability structure as part of the firm name.⁵

These are just a sample of some of the questions regarding firm names and letterheads – and lawyers who have questions are encouraged to call the ethics hotline.

Endnotes

¹ See, e.g., Disciplinary Proceedings against Brandt, 2003 WI 138.

² See South Carolina Ethics Op. 05-19 (2005).

³ See D.C. Ethics Op. 332 (2005).

⁴ See, e.g., Disciplinary Proceedings against Brown, 2010 WI 104.

⁵ See SCR 20:5.7(e)(1).