Opinion #13. Firm Name Including Public Official

Issued by the Professional Ethics Commission

Date Issued: October 15, 1980

Question

If an attorney (Lawyer A) withdraws from a law firm (A, B & C) to become a public official, may that firm ethically continue to use its same name if Lawyer A’s name is removed from the list of attorneys appearing on the firm’s letterhead, office entrance, etc., and if the response to any calls for Lawyer A, or questions concerning his relationship to the firm, is that Lawyer A is no longer a member of, or affiliated with, the law firm of A, B & C.

Opinion

The issue presented is whether the proposed retention of the firm name, and its use on business cards, stationery, directory listings and other professional notice, constitutes a “misleading” or “deceptive” statement prohibited by Rule 3.9(a) of the Maine Bar Rules. Rule 3.9(b) states that a misleading or deceptive statement would include, among other things, a statement or claim that:

a. Omits to state any material fact necessary to make the statement, in light of all circumstances, not misleading; (3.9(b)(2))

b. Is intended or is likely to create an unjustified expectation; (3.9(b)(3))

c. Is intended, or is likely, to convey the impression that the lawyer is in a position to influence improperly any Court, tribunal, or other public body or official; (3.9(b)(5))

d. Contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby, or fails to contain reasonable warnings or disclaimers necessary to make the representation or implication not deceptive. (3.9(b)(6))

In the Commission’s view, continued use of the firm name of A, B & C, while Lawyer A is serving as a public official and is not a member of the firm, would be misleading and is therefore ethically improper.[1] Such conduct would be misleading because of the implication that Lawyer A may still be associated with the firm, when in fact he is not. An explanatory note on the firm letterhead and/or on other professional notices would not cure this problem with regard to prospective clients, as the problem is inherent in the misleading firm name itself. Similarly, the Commission believes there is a danger that an ordinary prudent person could believe, because of a misunderstanding about Lawyer A’s relationship to the firm, that the firm might have special influence in high places due to the connection with Lawyer A. In the Commission’s opinion, these are the very sorts of misunderstanding the drafters of the Maine Bar Rules were concerned about in defining the term “misleading” in Rules 3.9(b)(3), 3.9(b)(5) and 3.9(b)(6).

This conclusion is also supported by a review of past ethical rules and opinions developed by the legal profession, and of past practices of law firms in the State of Maine. There has long been a concern about the dangers of misleading the public by retaining the name of a former partner in a law firm’s name. An early opinion by the ABA Committee on Professional Ethics in 1925 concluded that a law firm’s continued use of the name of a deceased partner in its firm name would be ethically proper where it was the local custom to do this and the result would not be misleading to the public. Formal Opinion 6. That Opinion also noted, however, that where a member of a law firm is appointed to the Bench, “propriety would frequently require that the name of the judge should be dropped from the firm name.” These conclusions were later reflected in ABA Canon 33, adopted in 1928 and amended in 1937, which provided in relevant part:

In the selection and use of a firm name, no false, misleading, assumed or trade name should be used. The continued use of the name of a deceased or former partner when permissible by local custom is not unethical, but care should be taken that no imposition, or deception is practical through this use. When a member of the firm, on becoming a Judge, is precluded from practicing law, his name should not be continued in the firm name.

Subsequent interpretations of Canon 33 dealt with situations where a partner accepts a public office other than a judgeship. In Formal Opinion 192, it was stated that:

In general, where an attorney accepts employment, either public or private, his name may properly be carried by his firm. If the conditions of his employment require that he sever all other connections, he can no longer remain a member of the firm, and in such cases should not permit his name to be used by the firm. In the absence of such conditions or of a law requiring the attorney to refrain from private practice, there is no objection to his retaining his membership in a law firm or in sharing the earnings of the law firm, provided such firm does not represent interests adverse to the employer, and the public is not misled. (Emphasis supplied)

In Formal Opinion 315, dated December 11, 1965, dealing with a lawyer who was elected Governor of his state, the Committee noted:

Assuming that the conditions of the acceptance of the office of Governor do not legally require the successful candidate to sever any or all of his other connections, in general his name may properly be continued in the firm name and carried on the firm letterhead if there is no statute opposing it. However, if a state statute exists prohibiting the Governor from practicing law, then his name should be taken out of the firm name. The same principles would apply to listing the name of the Governor in the various legal directories wherein the firm is listed, with the notation 'on leave' after his name in the list of individual lawyers, but without showing the public office held.

In the event the officeholder’s name is so continued in the firm name, whether or not he receives compensation from the firm, he must be responsible as a partner of the firm and liable as such in order to avoid possible deception.

Finally, in Formal Opinion 318, the Committee established a safe harbor where:

. . . a partner whose name appears in the name of a law firm is elected or appointed to high local, state or federal office, which office he intends to occupy only temporarily, at the end of which time he intends to return to his position with the firm, and provided that he is not precluded by holding such office from engaging in the practice of law and does not in fact sever his relationship with the firm but only takes a leave of absence, and provided that there is no local law, statute, or custom to the contrary, his name may be retained in the firm name during his term or terms of office, but only if proper precautions are taken not to mislead the public as to his degree of participation in the firm’s affairs. (Emphasis supplied)

Three years later, the ABA Canons of Professional Ethics (including Canon 33) were replaced by the ABA Code of Professional Responsibility, effective January 1, 1970. One of the sections of this new Code, DR2‑102(B), provided in relevant part that:

A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.

Although the above‑quoted Disciplinary Rule has been abrogated by Maine Bar Rule 3.9, it is the opinion of this Commission that the historical development of ethical rules that culminated in DR2‑102(B) is relevant to a proper interpretation of Maine Bar Rule 3.9 and supports the conclusions of this Commission in the instant case. Similarly, we are not aware of any local custom to the contrary that would argue for a different result. Thus, while there have been numerous instances where law firms have retained the name of a deceased or truly retired former partner in their firm name, we know of no such custom in Maine regarding former partners who have ceased practicing, not because of retirement, but because they have become public officials and are therefore unable to continue practicing law. On the contrary, in the case of lawyers appointed to the Bench, the custom has clearly been to remove the judge’s name from the firm name. The same result should obtain, in the Commission’s view, when the public official has assumed a legislative or public executive or administrative post as opposed to a judicial position.

For these reasons, the Commission concludes that the firm of A, B & C could not, on the facts presented, ethically retain the name of Lawyer A in its firm name, regardless of whether or not an explanation were added to the letterhead and other professional notices indicating that Lawyer A has withdrawn from the firm.


Footnote

[1] No opinion is expressed as to whether the result would be different if another lawyer whose last name was also A was still a member of the firm. (Back)


Enduring Ethics Opinion