MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2000-03
Use of a former partner’s name in the name of a firm.
You have asked for the Committee's opinion as to whether a law firm may continue to use the surname of a lawyer in the name of the firm when the lawyer has not retired from the practice of law and continues to practice under the lawyer's own name. The inquiry does not disclose whether the lawyer continues to have any ownership interest in the firm.
The lawyer has been in the practice of law since 1956 in a firm that was first a partnership, then a professional corporation, each using the lawyer's surname in its name. In the early 1980's the firm's name merged with another professional corporation and the lawyer's surname was included in that firm's name and is to this day. From 1994 to 1998, the lawyer was listed as "Of Counsel" to the firm and has subsequently been identified on the firm's letterhead as "Partner Emeritus," in addition to the lawyer's surname being incorporated in the firm name on that letterhead.
Your question raises vexing issues concerning the interplay between the state's regulation of professional corporations and the Rules of Professional Conduct as they relate to "trade names." The Rules of Professional Conduct clearly prohibit the continued use of the lawyer's surname in the firm's name if the firm conducts business as a partnership and not as a professional corporation, unless the lawyer continued to be a partner. Rule 7.5 and its comments make clear that a firm name that implies that an association of lawyers is practicing law as a partnership must in fact be a partnership. Designating the lawyer as "Partner Emeritus" on the letterhead implicates this rule and implies that the firm is practicing as a partnership when other representations o the letterhead, such as "P.A." suggests otherwise1. The letterhead should be changed to comply with Rule 7.1 and 7.5, so that no one will be confused over the nature of the business form of the practice.
The Committee generally refrains from offering legal opinions. Nevertheless, your question requires that we discuss briefly the laws that regulate professional corporations. The Corporation and Associations Article of the Maryland Code regulatesprofessional corporations. It concludes requirements regarding the language that can be used in their names. For example, §5-107 provides that a professional corporation's name must include at least the surname of one of its stockholders unless it can fit within an exception:
The name of a domestic professional corporation or a foreign professional corporation authorized to transact business in the State shall contain the surnameof one or more stockholders of the corporation unless:
- The name of the corporation is approved by the appropriate licensing unit;
- A certificate of authorization for use of the corporate name is issued to the corporation or to its incorporator by the appropriate licensing unit; and
- The certificate of authorization for use of the corporate name issued by the licensing unit is attached to the articles of incorporation document in which the name is adopted.
§5-107, Corporations Article, Md. Code Ann. The question you raise does not implicate this provision, as at least one of the current shareholder's surnames is included in the firm's name. Thus, your firm arguably does not need approval of the court or bar association in the use of its name. As an example of when you might need that approval see: Ex parte Lord & Whip, 309 Md. 222, 522 A.2d 1347 (1987) (the Court of Appeals approved the use of the trade name "Lord & Whip" despite the fact both of the attorneys who had formed the firm and whose surnames were being used had long since passed away). As the comments to Rule 7.5 point out, your firm name constitutes a "trade name," and trade names are now authorized in Maryland by virtue of that rule. Nevertheless, those same comments provide that using a lawyer's name who is not associated with the firm is misleading:
…Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm. (Emphasis supplied.)
Comment, Rule 7.5, Rules of Professional Conduct.
Assuming the lawyer is no longer a shareholder of the firm and continues to practice law, the Committee believes that the firm violates Rule 7.5 and Rule 7.1 by using the lawyer's name in its firm name. If the lawyer continues to be a shareholder or partner in the firm, the Rules of Professional Conduct do not prevent the firm from using the lawyer's surname in its firm name, provided doing so complies with Maryland law, despite the lawyer's additional practice outside the firm. Under such circumstances, the Committee suggests that both the firm and lawyer consider using appropriate notices and disclaimers in their practices to avoid the prospect that anyone could be mislead by the use of the lawyer's surname in the firm's name.
In conclusion, the Committee distinguishes the situation you have described from those situations involving retired or deceased partners on shareholders whose names may continue to be used in the firm's name as suggested by the comments to Rule 7.5.
1 In your letter you indicate that before being designated "Partner Emeritus" the lawyer was "Of Counsel" to the firm and the firm's letterhead indicated as much. As discussed infra, use of the lawyer's surname in the firm name implies a relationship that may be misleading when the lawyer is no longer a partner or shareholder in the firm bearing the lawyer's surname. This is true even when the lawyer is designated "Of Counsel," but is no longer a partner or shareholder in the firm that bears the lawyer's surname.