Inquiry is made as to the ethical propriety of using the firm name "Law Offices of A, B & C"; or, the firm name "A, B & C, An Association of Attorneys"; or, listing C as "Of Counsel" to the firm of A and B.
A and B are partners in the practice of law and intend to rent office space to attorney C. C will also share in paying a portion of the utilities, library maintenance, copy machine expenses and other overhead expenses. C will not be a member or associate of the firm of A and B but, from time to time, will be associated by A and B in certain cases in which C specializes. Likewise, from time to time, A and B will be associated by C in certain cases in which A and B specializes. Inquiry is made as to the appropriate name of the law firm.
Disciplinary Rule 2-102(B) of the Code of Professional Responsibility states, in part:
A lawyer ... shall not practice under ... a name that is misleading as to the identity of the lawyer or lawyers practicing under such name.
Formal Ethics Opinion 81-F-8, in holding that there is no impropriety in forming an intrastate affiliation of a professional corporation and a professional association whereby one attorney is a member of both firms, stated that careful attention and special care should be taken to insure that the exact nature of the affiliation is known to the clients of each firm and to the public. The opinion further stated that there should be no confusion created in the use of letterheads, shingles and listings as to the individuals who share in the responsibility and liability for the acts of each firm.
The firm name of "Law Offices of A, B & C" implies that attorneys A, B and C are partners in the practice of law and that each partner is liable for the acts of the other. A partnership is defined by Black's Law Dictionary, Fifth Edition, at page 1009, as:
A voluntary contract between two or more competent persons to place their money, efforts, labor and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.
Based on the facts stated herein, it is obvious that the arrangement contemplated by A, B and C is not a partnership arrangement. Therefore, it is improper for them to use the firm name "Law Offices of A, B & C".
The firm name "A, B & C, An Association of Attorneys" implies that attorneys A, B and C are not partners. American Bar Association Formal Opinion 318 discusses the use of the term "and Associates" and at page 14 states:
If an associate is one who is not a partner, then this would be a proper designation for one who is associated with another or others in the practice of law but does not share responsibility with him or them.
The facts submitted in this inquiry state:
C will not be a member or associate of the firm of A and B ....
Therefore, it is obvious that the arrangement contemplated by A, B and C is not an association. Therefore, it is improper for them to use the firm name "A, B & C, An Association of Attorneys".
It is recognized that the term "An Association of Attorneys" is not the only appropriate disclaimer to use in designating that the arrangement is, in fact, not a partnership. The average
client or the general public will not perceive such a term as meaning that no partnership exists. An additional disclaimer is necessary and, therefore, the term "Not a Partnership" must be included in any arrangement where a partnership does not exist.
The use of such a disclaimer is necessary not only to indicate to the public the limited liability of the individual members of the association, but also to indicate to the legal community the exact nature of the association.
ABA Formal Opinion 330 defines the term "Of Counsel" as follows:
The relationship indicated by the term 'Of Counsel' is a close, continuing, personal relationship between an individual lawyer and a law firm or lawyer, and the relationship is one that is not that of a partner, associate, or outside consultant.
It appears that the arrangement contemplated by the attorneys in this instance is that attorney C will serve in an "Of Counsel" relationship to the law firm of A and B; and, that the law firm of A and B will serve in an "Of Counsel" relationship to Attorney C. There is no impropriety in such an arrangement.
This 18th day of January, 1984.
O. B. Hofstetter, Jr.
F. Evans Harvill
William R. Willis
APPROVED AND ADOPTED BY THE BOARD