MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2002-15
Continued use of former partner’s name and name of law firm after former partner has become "of counsel."
Your inquiry asks the propriety of whether or not a law firm's letterhead may continue to use a firm name which includes the name of a former partner who is now "of counsel."
Rule 7.5 of the Maryland Lawyers Rules of Professional Conduct and Attorney Trust Accounts provides in Section (a): "a lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1…."
Rule 7.1 states: "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 misrepresentation or fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading…."
The comments to Rule 7.5 provide: "a firm may be designated by the name of all or some of its members, by the names of deceased or retired members where there has been a continuous succession in the firm's identity or by a trade name such as the 'ABC Legal Clinic'."
The Committee has previously addressed the issue of whether a retired partner's name could stay in the firm name. In Ethics Docket 96-13 the Committee opined that if, in fact, two individuals practiced in a partnership, the name of the partnership would operate as a trade name. If the trade name existed prior to the retirement of one of the partners, the firm could continue to use the pre-existing trade name.
It is clear from the Rule as well as prior opinions, that there had to be a true partnership. The Committee again addressed the issue in Ethics Docket 97-2. In that Opinion two attorneys desired to advertise as "Doe & Doe." In reality one of the attorneys would have been of counsel. It was noted in that Opinion: "'of counsel' relationship denotes a close and continuing relationship with the firm, but not as a member of the firm either as a partner or an associate." The Committee further opined in 97-2, where no true partnership existed, it would be unethical to designate the firm as a partnership in its letterhead.
The Committee is of the opinion that as long as there indeed existed a partnership prior to one of the partners seeking of counsel status, the firm can still continue to use the trade name of the former partnership. In reaching this conclusion, the Committee is of the opinion that the Rule would also require that the letterhead indicate with clarity that a nonmember/partner of the firm whose name appears in the letterhead be designated as "of counsel" if he or she has assumed that status. It would also be necessary for a lawyer who is practicing as a sole proprietorship to designate this status on his letterhead if he or she is doing business under a trade name that would create the inference of a partnership.