Legal Ethics Corner

Ethics Corner is designed to present ethical issues that practitioners might well face on a daily basis. It is a service of the Legal Ethics Committee of the San Diego County Bar Association for SDCBA members.  

 “X & Associates,” “Y Law Group,” “Z Law Firm”: What’s in a Name Anyway?

Yes, you guessed it: a potentially misleading statement. By this point in time, use of the terms “X & Associates,” “Y Law Group,” and “Z Law Firm” are very common. One recurring question, however, is whether a sole practitioner may use any of these terms. The concern is that such a designation might offend the universal prohibition on using misleading or untruthful statements in advertising. In California, this is found in Rule of Professional Conduct 1-400(D)(1-3) which prohibits, among other things, a “communication” or “solicitation,” as defined, that contains any untruthful, deceptive, confusing, or misleading information, or omits any fact necessary to make a statement not misleading. Curiously, California has not issued a state bar opinion regarding use of the above terms, perhaps because 1-400 is sufficiently on point. The rule contains various “Standards” which constitute presumed violations of the rule. Among these is using a “firm name, trade name, fictitious name, or other professional designation which states or implies that a member has a relationship to any other lawyer or a law firm as a partner or associate” when such relationship does not in fact exist. (1-400, Standard (7).) Additionally, our rules define "associate" as “an employee or fellow employee who is employed as a lawyer[.]” (1-100(B)(4).) The State Bar will issue a certificate of registration as a law corporation only if, in addition to many other requirements, “the name of the corporation and any name or names under which it may practice law complies with the California Rules of Professional Conduct…” (Law Corporation Rules of the State Bar of California, section IV(A)(5).) Apparently, the Law Corporation Department will not approve any law corporation name with "and Associates" unless there are two or more attorneys who permanently work with the proprietor, even if working less than full time. The concern, apparently, is that such a name—without there being at least two associates—is false and misleading.

To the extent further guidance is needed, a general review of state ethics opinions reveals a consensus that an attorney may not use the term “and associates” or “X Law Group” if there is only one attorney working at the firm. The general rationale is that these two terms communicate by implication (if not directly) that there is more than one attorney. Attempts to justify the use of these two terms by the fact that the singular attorney has non-attorney employees, shares office space with other lawyers, or regularly co-counsels with outside lawyers, have variously been rejected. However, at least one jurisdiction allows for “and associates” even though there is only one associate, reasoning that restricting this term to the singular is not necessary to prevent misleading the public.

With respect to “X Law firm,” while there is some limited authority supporting the use of this term by a sole practitioner on the basis that it is not misleading as to the number of attorneys in the firm, such use might be questionable in California. Our rules define “Law Firm” as “two or more lawyers whose activities constitute the practice of law, and who share its profits, expenses, and liabilities” or “a law corporation which employs more than one lawyer[.]” (1-100(B)(1)(a-b).)

Although there is arguable panache in using the above terms to name a law firm, one needs to be careful that the christening is accurate and truthful. A rose by another name might not smell so sweet after all. (My apologies to The Bard. I could not resist.)

--Luis E. Ventura

**No portion of this summary is intended to constitute legal advice. Be sure to perform independent research and analysis. Any views expressed are those of the author only and not of the SDCBA or its Legal Ethics Committee.**