Opinion #132. Deletion from Firm Letterhead of Name of Attorney Who Has Been Suspended from the Practice of Law

Issued by the Professional Ethics Commission

Date Issued: April 12, 1993

Question

The Professional Ethics Commission has been asked by Bar Counsel whether the Bar Rules require deletion of the name of an attorney who has been suspended from practice from the name and letterhead of the law firm with which the attorney is affiliated.

Answer

The Commission had concluded that the Bar Rule 3.9(b) requires dropping the name of the suspended attorney from all “public communications” of the law firm with which he is affiliated, one of which is the firm letterhead, until such time as the attorney has been authorized to resume the practice of law.

Opinion

Unlike the former ABA Model Code of Professional Responsibility and the present Model Rules of Professional Conduct, the Maine Bar Rules contain no provision directly addressing the content of a law firm name. The Model Code of Professional Responsibility contained fairly detailed instructions in DR2‑102(b), one of which prohibited practice under a firm name containing names “other than those of one or more of the lawyers in the firm”, subject to an exception permitting names of “deceased or retired members of the firm”, if otherwise lawful. The Model Rules, somewhat closer to the Maine Rules, prohibit the use of any law firm name that would violate the general ban on false or misleading public communications. Model Rule 7.5(a). Like the Model Code, however, Model Rule 7.5(c) expressly prohibits continued use in a firm name of the name of the lawyer who has been elected or appointed to public office unless the simultaneous practice of law is permissible.

Maine Bar Rule 3.9(a) prohibits in general terms the use of any form of public communication containing “a false, fraudulent, misleading, or deceptive statement or claim.” The rule explains that the term “public communication” includes letterheads and therefore the name of the firm. Rule 3.9(b) defines the prohibited statements as including, among others, any statement that:

(2) omits to state any material fact necessary to make the statement, in light of all circumstances, not misleading; (3) is intended or is likely to create an unjustified expectation; **** (5) 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; or (6) contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand. . . .

Opinion 13 of the Grievance Commission, this Commission’s forerunner in issuing advisory opinions interpreting the Code of Professional Responsibility, explained the reasons why, and circumstances under which, a violation of Rule 3.9 could arise out of retaining the name of a lawyer who had been appointed or elected to public office in a firm name.

In the opinion of the Commission continued use of the name of a lawyer suspended from the practice of law is likewise a violation of Rule 3.9. Unlike use of the name of a public official, there seems little danger that prospective clients would think the firm had influence in high places if it continues use of a suspended lawyer’s name. There is, however, a risk that the general public will perceive the disciplinary process as somewhat lacking in meaning, or in force, if appearances suggest that a suspended lawyer continues to participate in the work, the profits, and the prestige of a law firm, as if nothing has happened. There is also a risk that clients and potential clients will think that the suspended lawyer continues to share responsibility for the debts of the firm and for its malpractice, if any. Such continued use of the lawyer’s name therefore violates Rule 3.9(b)(2). It seems quite clear that continued use of the name contains at least an “implication that is likely to cause an ordinary prudent person to misunderstand”. This alone would make continued use of the name a violation. In the commission’s opinion, that would be the case if the suspended lawyer’s name appeared anywhere in a public communication of the firm in a manner that, from its appearance or from nondisclosure, suggests that the suspended lawyer enjoys a relationship with the firm comparable to that of a retired partner.


Enduring Ethics Opinion

Enduring Ethics Opinion #132 [August 2012]