Ethics Opinon 1985-1

I
QUESTIONS PRESENTED

Two attorneys share office space and office expenses but have not formed a partnership. Both names are listed as a common firm name on the door as well as on the office letterhead. Is the use of a common name or firm name appropriate in these circumstances?

II
SUMMARY

Although the California Rules of Professional Conduct do not specifically prohibit the use of a firm name by attorneys who are not partners, the practice has traditionally been held to be improper in California. In addition, the American Bar Association Code of Professional Responsibility specifically prohibits such an act. The Committee agrees that, in the absence of a disclaimer of partnership status, the use of a firm or trade name is misleading and/or deceptive unless a partnership has been formed.

III
ANALYSIS

ABA Code of Professional Responsibility, Canon 2, provides:

"EC 2-11 The name under which a lawyer conducts his practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead laypersons concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under a designation containing his own name, the name of a lawyer employing him, the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, the name of a professional legal corporation, which should be clearly designated as such . . . .

"EC 2-13 In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status. He should not hold himself out as being a partner or associate of a law firm if he is not one in fact, and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.

"DR 2-102 Professional Notices, Letterheads and Offices.

"(B) A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, . . . .

"(C) A lawyer shall not hold himself out as having a partnership with one or more other lawyers or professional corporations unless they are in fact partners."

Thus, the American Bar Association clearly prohibits the use of a partnership name when the lawyers are not, in fact, partners.

Although the Rules of Professional Conduct of the State Bar of California do not specifically prohibit the listing of nonpartners in a common firm name, or the use of a trade name by nonpartners, previous ethics opinions of this state have uniformly discouraged such acts. The Standing Committee on Professional Responsibility and Conduct of the State Bar of California stated, in Formal Opinion No. 1971-27, page 2, that the practice was ethically improper and "such conduct could be in violation of the deceptive nature of the trade name employed." The Los Angeles County Bar Association Ethics Committee, in Informal Opinion 1959-3, provided in a somewhat different context that it is improper for lawyers, not bonafide partners, to use a firm name on letterheads and office doors when they are associated merely to refer business.

The Committee is concerned that the use of a common firm name in such a situation is deceptive. A client or potential client might logically assume the common name represents a partnership of the attorneys involved, rather than two unrelated lawyers sharing office space. At a minimum, it might appear to the client that each of the lawyers sharing office space will incur legal liability for the acts of the other lawyers. Moreover, in some circumstances, the use of a firm name might constitute a communication subject to rule 2-101(a)(2) of the Rules of Professional Conduct of the State Bar of California which prohibits communications regarding availability for professional employment which:

"Contain any matter, or present or arrange any matter in a manner or format, which is false, deceptive, or which tends to confuse, deceive or mislead the public . . . ."

Therefore, the Committee concludes that the use of a firm name in this situation is not appropriate.

This Opinion is advisory only. It is not binding upon the State Bar, the Board of Governors, its agents or employees.

Disclaimer: This opinion was issued by the Legal Ethics Committee of the San Diego County Bar Association. It is advisory only and is not binding upon any member of the SDCBA, any other member of the State Bar of California, the State Bar of California or its Board of Governors, or any persons or tribunals charged with regulatory responsibilities. The SDCBA, its officers, directors, agents, and the Legal Ethics Committee members assume no responsibility or liability in rendering this opinion.