Opinion #53. Individual Attorneys as "Associates" But Not Partners

Issued by the Professional Ethics Commission

Date Issued: March 14, 1985

Question

The Commission has been asked by attorney X, a sole practitioner who “associates” with two other attorneys, for an advisory opinion regarding the propriety of using on his letterhead (below his name) the following words:

An individual, general practice in association with [attorney Y] and [attorney Z].

The three attorneys in question have separate practices in separate towns but intend to share some cases based on their respective experience, preference, and location. Fee sharing is to be worked out on a case by case basis. It is not intended by the attorneys that their relationship be a formal partnership. Although they fully accept liability for each other’s negligence (not only in shared cases, but in all cases any of them handles), they do not accept liability for each other’s debts incurred in the practice of law such as for rent, equipment purchases, or other business transactions.

Opinion

Maine Bar Rule 3.9 now controls issues of publicity, advertising, and solicitation by lawyers. Its general approach is to permit any advertising which is not false, fraudulent, misleading, or deceptive. Whether the words quoted above are misleading or deceptive depends on whether they omit to state any material fact necessary to make them not misleading [Rule 3.9 (b)(2)], or are intended or are likely to create an unjustified expectation [Rule 3.9(b)(3)], or contain a representation or implication that is likely to cause an ordinary prudent person to misunderstand or be deceived thereby [Rule 3.9 (b)(6)].

In a 1980 advisory opinion written by the Grievance Commission a similar factual situation was presented except that the proposed letterhead would have used simply the expression “Law Associates.” In that opinion the Commission held that the expression was ambiguous and could mislead the reader into believing that the attorneys were actually partners.

In the present variation of these facts this Commission concludes that the proposed wording is sufficiently specific to prevent “an implication . . . likely to cause an ordinary prudent person to misunderstand or be deceived . . .” within the meaning of Rule 3.9(b)(6). Nor do we believe that any of the other provisions of Rule 3.9(b) would be violated. In this case the statement that the attorney has “an individual, general practice” removes any suggestion of a partnership that the words “in association with” by themselves might otherwise imply.

We have reached the foregoing conclusion while aware that ABA Informal Opinion No. 1265 holds that “DR 2‑102(A)(4) permits the listing or identification of lawyers on firm letterheads only if the lawyers are partners . . . or associates or have the relationship described as `Of Counsel’ or equivalent.” We conclude that DR 2‑102(A)(4) has no direct counterpart in the Maine Bar Rules.


Enduring Ethics Opinion