MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2004-25
Use of the Surname of Former Partners as part of a Firm’s Trade Name where Former Partners are presently engaged in the Practice of Law
You advise that you are an attorney in private practice and provide the following facts: You advise that in the 1960s, Attorney A formed a general partnership with attorneys B and C under the name A, B & C. The partnership continued until the 1980s when A withdrew from the firm and ceased the practice of law to serve as the president of a nonprofit corporation. At the time of A's withdrawal, the partnership agreement provided that the firm name could include the names of active and former partners, so long as former partners did not engage in the practice of law outside the partnership. The remaining partners, B and C, formed a professional association named A, B & C, P.A. Shortly after A's departure from the firm, A entered into a letter of understanding, which provided that the partnership agreement of the former firm would not merge into the letter of understanding and that in the event of any inconsistency, the terms of the original partnership would prevail. The letter of understanding between A and A, B & C, P.A. did not alter or amend the terms of the limitations on the future use of A's surname in the firm name.
A, B & C, P.A. continued to use A's name on its letterhead, with the designation "Retired." A's son has the same surname as A. "Jr." became an associate lawyer at A, B & C in the 1970s and later became a partner and shareholder of A, B & C, P.A. In 2003, Jr. announced that he was leaving the firm. He requested that the firm remove A's surname/his surname from the firm letterhead.
Jr. incorporated his law firm as "Jr., P.A." using his first name, middle initial and surname, "A" in the name of his firm. His offices are in close proximity to those of A, B & C, P.A. Shortly thereafter the creation of Jr., P.A., A obtained reinstatement of his active status as a lawyer licensed to practice in Maryland and became "Of Counsel" to Jr.'s firm. For the past year, A has engaged in the practice of law with Jr. Further, A is identified on Jr., P.A.'s letterhead and holds himself out as an active practitioner. You inquire whether A, B & C, P.A. may continue to use A's surname in the firm name and on its letterhead. You also inquire about the terms of the various partnership agreements and compliance with pertinent state law.
Pursuant to the Committee's Guidelines, the Committee does not issue opinions on questions of law. Therefore, the Committee will not comment on the terms of the A, B & C partnership agreement or letter of understanding between A and A, B & C, P.A., nor will it address the firms' compliance with Maryland Code Ann., Corp. & Assoc. § 5-100, et seq., which are matters of law.
Further, the Committee does not issue opinions regarding matters that are likely to result in litigation and does not usually issue opinions regarding the conduct of someone other than the person requesting the opinion. The Committee notes that your inquiry pertains to the conduct of other lawyers and that this matter might reasonably be expected to result in litigation. Although your inquiry does not meet our Guidelines and the Committee will not render an opinion on it, we do wish to direct your attention to Rule 7.5 of the Rules of Professional Conduct, which provides in pertinent part:
Rule 7.5 Firm Names and letterheads.
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
Rule 7.1 (a) in turn, provides that a "lawyer shall not make a false or misleading communications 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 Committee also refers you to MSBA docket 2000-03.1
1Opinions of the Committee on Ethics are available "on-line" via the Maryland State Bar Association's website at www.msba.org.