Opinion #86. Firm Name Including "Of Counsel"
Issued by the Professional Ethics Commission
Date Issued: August 31, 1988
Lawyer B asks whether it is permissible under the Maine Bar Rules for him to call his law firm “A and B” under the following circumstances. Lawyer A, who has practiced law for 50 years in a small town, is planning on cutting down his activities and no longer wishes to run his own law office. Lawyer B has been practicing law by himself in that town. Lawyer A has agreed to become “of counsel” to Lawyer B’s law firm and to be available for consultation on a regular basis at the office of Lawyer B. Under these circumstances, Lawyer B asks whether he may call his law firm “A and B.”
In determining whether a firm name is permissible under the Rules, the Professional Ethics Commission and the Grievance Commission have considered whether a given firm name is misleading or deceptive under Maine Bar Rule 3.9(b). See Grievance Commission Opinion No. 13 (impermissible for a firm to retain in firm name the name of a former member of the firm who has withdrawn from the firm to become a public official); Grievance Commission Opinion No. 14 (impermissible for two lawyers who have separate practices and offices in separate towns and who do not accept full partnership liability to use a joint letterhead, captioned, “Law Associates”); Professional Ethics Commission Opinion No. 77 (permissible for a firm to retain a deceased partner’s name in the firm’s business title without indication that the named lawyer is deceased).
Under the circumstances presented by this inquiry, the firm name, “A and B,” suggests that the relationship between Lawyers A and B is more than an office‑sharing arrangement; that to the extent that Lawyer A is practicing law, he is practicing law in conjunction with Lawyer B; that Lawyers A and B consult with each other on a continuing basis and otherwise cooperate with each other; and that Lawyers A and B share some significant level of mutual responsibility in connection with providing professional services to clients of the firm.
If all of these factors constitute the fact of the relationship between Lawyers A and B, the Commission concludes that under the circumstances of this inquiry, it would not be misleading or deceptive and would, therefore, be permissible for Lawyers A and B to call their law firm, “ A and B.” The Commission further concludes that a consequence of the use of that firm name and that relationship between Lawyers A and B is that the clients of each of them would be considered clients of the other for all purposes of the Maine Bar Rules, including those provisions respecting the maintenance of client confidences and secrets and avoidance of conflicts of interest. See Maine Bar Rule 3.4(k).
One member of the Commission would find that the proposed firm designation violates Rule 3.9(b)(3). This opinion silently overrules Opinion No. 14 which declined to approve the use of the former name “Law Associates” by attorneys who, like A, were unwilling to assume the full responsibility of partnership status. It is also forbidden by Rule 7.5 of the A.B.A. Model Rules of Professional Conduct which states that:
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
The present situation is distinguishable from that in which a retiring or deceased partner’s name is retained in the firm name because in the typical case, that name has become identified with a law firm as an institution rather than with the participation of individual members of the firm. In such circumstances, the purpose of the retention is to avoid confusing the public by changing a familiar label. In the present case, the sole purpose of the proposed firm designation is to “create an unjustified expectation” in violation of Rule 3.9(b)(3) that the semi‑retiring attorney is a partner who is active in the firm as well as being responsible for partnership debts.