MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2001-27
FIRM NAMES: May Law Firm Use Name “Smith & Co.”
Your letter states that your two attorney law firm is using the name “Smith & Co.” Immediately under the name of the firm, the word “Attorneys” appears. In addition, your letterhead indicates that you are licensed to practice in California and you are a certified public accountant. You have asked whether your firm’s name might be misleading, perhaps by conveying the impression that an unnamed company is associated with your firm.
In an attempt to support your belief that your law firm’s name is not misleading, you cite examples taken from the Baltimore yellow pages of several accounting and stockbrokerage firms which also use the “& Co.” designation. You state that you believe it is understood that the styling “& Co.” indicates that others are associated with the named individual.
Accountants and stockbrokers (unless they are also attorneys) are not subject to the Maryland Rules of Professional Conduct, which regulate the conduct of attorneys in the State of Maryland. Rule 7.1 of the Rules of Professional Conduct governs communications concerning a lawyer’s services. It states, in part:
“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:
(a) contains a material representation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading…”
Rule 7.5(a) provides that “[a] lawyer shall not use a firm name or letterhead or other professional designation that violates Rule 7.1” and Rule 7.5(a) provides that “[1]lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.” The comments to Rule 7.5 make it clear that the use of a trade name in professional practice is acceptable so long as it is not misleading. Thus, Rule 7.5 and its comments make it clear that a firm name that implies that an association of lawyers is practicing as a partnership must in fact be a partnership. See Ethics Docket 2000-03.
The Maryland General Corporation Law states that the name of a corporation must include one of a series of words or abbreviations of such words, including the word “Company”, if it is not preceded by the word “and” or a symbol for the word “and”. Md. Code Ann. Corps & Ass’ns §1-502 (a) . The corporate name of a professional corporation must include one of the following words or abbreviations: chartered, chtd., professional association, P.A., professional corporation or p.c. Corps. & Ass’ns §1- 502 (f)
Although much less common recently, members of the Committee have seen business organizations formed years ago named or referred to as “Smith & Co.” It is not clear whether a business organization known as “Smith & Co.” is operating as a partnership or a sole proprietorship, although by negative implication, it is understood that including the word “and” or the symbol “&” in the name of a business entity means the entity is not a business corporation.
The Committee is aware of law firms calling themselves “Smith & Associates”. The Committee has previously opined that it is commonly understood that the term “associates” refers to lawyers who are employees of a law firm, but are not partners. See Ethics Docket 99-21. A firm named “Smith & Associates”, therefore, with the names of individuals other than Smith on the letterhead, would be understood to be a sole proprietorship with lawyers who are employees of the firm.
The Committee is not aware of any law firms calling themselves “Smith & Co.” It is not clear whether the lawyer other than Smith is an employee or a partner and, accordingly, whether the firm is practicing as a sole proprietorship or a partnership. Accurate communication of the relationship among attorneys who are representing a client is crucial to the public’s interest in knowing what resources are committed to advance the client’s interest, ensuring that subordinate attorneys are supervised and apprising clients of the division of fees among attorneys. Thus, the Committee believes members of the public might not understand the implication of a law firm name styled as “Smith & Co.” and, therefore, might find it misleading. Accordingly, your firm name and letterhead do not comply with the Rules.
This opinion, 01-27 makes references to opinion 99-21.
REFERENCES:
Rules 7.1, 7.5(a) and 7.5(d)
Md. Code Ann. Corps. & Ass’ns §§1-502(a) and 1-502(f)