Bar Rules

Formal Advisory Opinion No. 16-3

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 16-3

STATE BAR OF GEORGIA
ISSUED BY THE FORMAL ADVISORY OPINION BOARD
PURSUANT TO BAR RULE 4-403 ON JUNE 14, 2016
FORMAL ADVISORY OPINION NO. 16-3 (Proposed FAO No. 15-R1)
Supreme Court Docket No. S17U0554

QUESTION PRESENTED:
May a sole practitioner[1]  use a firm name that includes “group,” “firm,” “& Associates”?

SUMMARY ANSWER:
A sole practitioner may not use a firm name that includes “group” or “& Associates” because both terms would incorrectly imply that the sole practitioner practices with other lawyers. However, a sole practitioner may use a firm name that includes “firm.”

OPINION:
The question presented is governed by Rules 7.1 and 7.5 of the Georgia Rules of Professional Conduct. Rule 7.5(a) provides that “[a] lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.” Rule 7.1(a), in turn, provides that advertisements about a lawyer’s services may not be “false, fraudulent, deceptive or misleading.” A firm name is a form of advertising about a lawyer’s services, and so a firm name may not be false, fraudulent, deceptive, or misleading either. Rule 7.5 Comment [1]. In addition, Rule 7.5(d) provides that a firm name may state or imply that a lawyer “practice[s] in a partnership or other organization only when that is the fact.”

In applying these rules to the question presented, the Board is mindful that lawyer advertising is commercial speech that is entitled to some protection by the First Amendment to the United States Constitution. Bates v. State Bar of Ariz., 433 U.S. 350 (1977); In re Robbins, 266 Ga. 681 (1996) (per curiam). Commercial speech is not entitled to absolute protection, and false, fraudulent, deceptive, or misleading commercial speech may be freely regulated or even prohibited entirely. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623-24 (1995); Zauderer v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 638 (1985); In re Robbins, 266 Ga. at 683. Thus, there is no constitutional impediment to prohibiting names of law firms that are false, fraudulent, deceptive, or misleading.

The question, of course, is whether a particular firm name is false, fraudulent, deceptive, or misleading. The requestor has asked only about whether the use of “group” in a sole practitioner’s firm name, such as Doe Law Group,[2] is false, fraudulent, deceptive, or misleading. Because the use of “firm” and “& Associates” in a sole practitioner’s firm name, such as Doe Law Firm and Doe & Associates, is so similar to the use of “group,” this opinion considers all three. Indeed, the Office of the General Counsel regularly receives requests for ethical guidance regarding the use of all of these terms in firm names, not just the use of “group” as the requestor has asked, and so it is appropriate to expand the scope of the requestor’s request.

In determining whether it is false, fraudulent, deceptive, or misleading for a sole practitioner to use “group” in his firm name, this opinion first considers the common dictionary definitions of this term. According to the New Oxford American Dictionary, a “group” in the business context is “a number of people who work together or share certain beliefs.” NEW OXFORD AMERICAN DICTIONARY 768 (3d ed. 2010). Merriam-Webster similarly defines “group” as “a number of individuals assembled together or having some unifying relationship.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 552 (11th ed. 2011). These common dictionary definitions of “group,” as well as the absence of a specialized definition of “group” in the context of the legal profession, lead to the conclusion that a sole practitioner may not use “group” in his firm name because this term would incorrectly imply that the firm consists of multiple lawyers. This conclusion is consistent with ethics opinions in other jurisdictions,[3] and it is also consistent with the position taken by the Office of the General Counsel when it has been presented with informal inquiries regarding the use of “group” in a sole practitioner’s firm name.

A different result is required with respect to the use of “firm” in a sole practitioner’s firm name. Although there is some similarity between the meanings of “firm” and “group” in denoting the name of a business, a different result is required because the Rules define a “firm” as “a lawyer or lawyers in a private firm, law partnership, professional corporation, sole proprietorship or other association authorized to practice law.” Rule 1.0(e). “This specific definition is, at least implicitly, a recognition that firms may consist of many lawyers or only a single practitioner.” D.C. Bar, Legal Ethics Comm., Ethics Op. 332 (2005).

Nevertheless, it should be noted that the common dictionary definitions of “firm” are not as clear as the common dictionary definitions of “group.” The New Oxford American Dictionary defines “firm” as “a business concern, esp. one involving a partnership of two or more people; a law firm.” NEW OXFORD AMERICAN DICTIONARY at 651. Although this definition assumes that most firms will be comprised of more than one person, it allows for the possibility that a firm will have only one person. Similarly, Merriam-Webster defines “firm” as “a partnership of two or more persons that is not recognized as a legal person distinct from the members composing it,” but it also defines “firm” as “the name or title under which a company transacts business.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY at 472. Even Black’s Law Dictionary is ambiguous about whether “firm” signifies more than one person. It defines “firm” both as “[t]he title under which one or more persons conduct business jointly” and as “[t]he association by which persons are united for business purposes.” BLACK’S LAW DICTIONARY 751 (10th ed. 2014). Thus, unlike “group,” “firm” is not necessarily pluralistic.

The definition of “firm” in the Rules means that it is not false or untruthful for a sole practitioner to use a firm name that includes “firm.” But because an accurate firm name still may be deceptive or misleading, this opinion must consider whether a firm name such as Doe Law Firm is deceptive or misleading when Doe is a sole practitioner. This name is not inherently deceptive or misleading because it would not cause a reasonable member of the public to believe that Doe necessarily practices with other lawyers.[4] However, the use of “firm” in a sole practitioner’s firm name could be deceptive or misleading in certain contexts, and so a sole practitioner who uses “firm” in his firm name must be mindful of his obligations under Rules 7.1 and 7.5.

The use of “& Associates” in a sole practitioner’s firm name, such as Doe & Associates, is a much more common issue. Whether this is proper depends on the meaning of “associate.” Generally, an associate is “a partner or colleague in business or at work” or “a person with limited or subordinate membership in an organization.” NEW OXFORD AMERICAN DICTIONARY at 97; see also MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY at 75 (defining “associate” as “an entry-level member (as of a learned society, professional organization, or profession)”); BLACK’S LAW DICTIONARY at 147 (defining “associate” as “[a] colleague or companion”). But “associate” has acquired a specific meaning in the context of the legal profession:

An associate is a … lawyer-employee who is not a partner of the firm. All other non-lawyer employees are to be considered simply employees and not associates. This category of employees includes paralegals, secretaries, non-lawyer clerks, officer [sic] managers and the like. When the word associates is employed on firm letterhead or in commercial advertisement such term refers to lawyers working in the firm who are employees of the firm and not partners.

Florida Bar v. Fetterman, 439 So. 2d 835, 838-39 (1983) (per curiam); see also BLACK’S LAW DICTIONARY at 147 (defining “associate” as “[a] junior member of an organization or profession; esp., a lawyer in a law firm, usu. with fewer than a certain number of years in practice, who may, upon achieving the requisite seniority, receive an offer to become a partner or shareholder”).[5] 

This opinion adopts this definition. This means that a sole practitioner may not use a firm name that includes “& Associates” because, by definition, a sole practitioner does not have any associates. A sole practitioner also may not use “& Associates” in his firm name to refer to partners or non-lawyer employees, such as paralegals, investigators, nurse consultants, etc., because they are not associates. For the same reason, a sole practitioner also may not use “& Associates” in his firm name to refer to lawyers with whom he has an office-sharing arrangement. Thus, for a firm name that includes “& Associates” to be proper, there must be at least one lawyer who employs two or more associates.[6] For example, a firm name such as Doe & Associates is proper only if Doe is the only partner in the firm and the firm employs at least two associates. Otherwise, the name would be false, fraudulent, deceptive, or misleading because it would incorrectly identify the number of lawyers in the firm and misrepresent the status of the firm’s lawyers and employees.

This conclusion raises additional questions, and although it is not possible to foresee all questions that may arise, a couple of the more obvious ones are addressed here. First, is it proper to use “& Associates” in a firm name to refer to part-time associates, lawyers designated as “of counsel,”[7] and lawyers hired on a contract basis? The answer depends on the degree to which the lawyer practices with the firm. For example, a part-time associate who works one day every month might not qualify, but a part-time associate who works twenty-five hours every week probably would qualify. The key is not the lawyer’s title but rather whether the lawyer actively and regularly practices with the firm.[8] If the lawyer does so, he falls within the definition of “associate” quoted above, even though he may not work full-time hours and may actually be a contractor rather than an employee.

Second, must a lawyer whose firm name includes “& Associates” change the name of the firm when the number of associates employed by the firm falls below two? At that time, the name of the firm has become inaccurate, but this opinion recognizes the practical difficulties associated with changing a firm’s name. When confronted with this issue, other jurisdictions have taken a flexible approach. In Minnesota, the continued use of “& Associates” in a firm name will not subject the lawyer to discipline if the requisite number of associates are hired within a reasonable amount of time or if the lawyer reasonably and objectively anticipates hiring the requisite number of associates within a reasonable amount of time. Minn. Lawyers Prof’l Resp. Bd., Op. 20 (2009). In Alabama, a disciplinary decision may depend on how long the firm has been without the requisite number of associates and what efforts have been made to hire more associates. Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993). Similarly, in the District of Columbia, the factors considered include the frequency and duration of the firm’s time without the requisite number of associates and the extent of the efforts made to hire more associates. D.C. Bar, Legal Ethics Comm., Ethics Op. 189 (1988). Ultimately, though, a law firm will have to change its name if it no longer employs at least two associates. This opinion agrees with the flexibility used in Minnesota, Alabama, and the District of Columbia, but determining whether a firm name violates Rules 7.1 or 7.5 because of hiring and firing decisions will have to be made on a case-by-case basis.

Although this opinion does not consider all of the possible terminology that could be used in the name of a sole practitioner’s firm, it does establish the principle that any name implying that a firm is larger than it truly is will be considered false, fraudulent, deceptive, or misleading and, therefore, a violation of Rules 7.1 and 7.5.

__________________

1 For purposes of this opinion, a sole practitioner is a lawyer who does not have any partners and does not employ any other lawyers.

2 This opinion uses Doe Law Group, Doe Law Firm, and Doe & Associates as examples of firm names implicated by the question presented. These sample names are fictitious and are not intended to refer to actual law firms or lawyers.

3 It appears that there are opinions on this issue from only four other jurisdictions, and all four concluded that a firm name may include “group” only if there are two or more lawyers practicing together. Wash. State Bar Ass’n, Advisory Op. 2163 (2007); Wash. State Bar Ass’n, Advisory Op. 2121 (2006); Sup. Ct. of Ohio, Bd. of Comm’rs on Grievances & Discipline, Op. 2006-2 (2006); N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 732 (2000); Mo. Bar, Informal Advisory Op. 20000142 (2000).

4 Again, it appears that there are very few opinions on this issue from other jurisdictions. All of them agree that a sole practitioner may use the term “firm” in his firm name. N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 869 (2011); D.C. Bar, Legal Ethics Comm., Ethics Op. 332 (2005); Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993); Iowa Sup. Ct., Bd. of Prof’l Ethics & Conduct, Op. 79-68 (1979).

5 In the analogous context of interpreting a statute, “the ordinary signification shall be applied to all words, except words of art or words connected with a particular trade or subject matter, which shall have the signification attached to them by experts in such trade or with reference to such subject matter.” O.C.G.A. § 1-3-1(b). This principle warrants reliance on the specific definition that “associate” has acquired in the context of the legal profession rather than on its general definition.

6 Almost all other state bar associations that have considered this issue, as well as the American Bar Association, agree with this conclusion. N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 931 (2012); Minn. Lawyers Prof’l Resp. Bd., Op. 20 (2009); State Bar of N.M., Ethics Advisory Comm., Formal Ethics Advisory Op. 2006-1 (2006); S.C. Bar Ethics Advisory Comm., Ethics Advisory Op. 05-19 (2005); D.C. Bar, Legal Ethics Comm., Ethics Op. 332 (2005); Sup. Ct. of Ohio, Bd. of Comm’rs on Grievances & Discipline, Op. 95-1 (1995); Utah State Bar, Ethics Advisory Op. Comm., Op. 138 (1994); Va. State Bar, Legal Ethics Op. 1532 (1993); D.C. Bar, Legal Ethics Comm., Ethics Op. 189 (1988); Wash. State Bar Ass’n, Advisory Op. 1086 (1987); Fla. Bar, Ethics Op. 86-1 (1986); Wash. State Bar Ass’n, Advisory Op. 919 (1985); Miss. Bar Ethics Comm., Op. 93 (1984); Wash. State Bar Ass’n, Advisory Op. 178 (1984); Ky. Bar Ass’n, Ethics Op. E-246 (1981); Okla. Bar Ass’n, Ethics Op. 288 (1975); N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 286 (1973); Colo. Bar Ass’n Ethics Comm., Formal Op. 50 (1972); ABA Comm. on Prof’l Ethics, Formal Op. 318 (1967); ABA Comm. on Prof’l Ethics, Formal Op. 310 (1963). Two states, Alabama and Arizona, appear to allow the use of “& Associates” when there is only one associate employed by the firm. Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993); State Bar of Ariz., Comm. on Rules of Prof’l Conduct, Op. 90-01 (1990). This opinion rejects this view because “& Associates,” as a plural term, obviously refers to more than one associate. Thus, the use of “& Associates” in a firm name to refer to only one associate is false, fraudulent, deceptive, or misleading. However, the use of “& Associate” would present a different question.

7 See State Bar of Ga., Formal Advisory Op. 98-4 (1998) (defining what constitutes an “of counsel” relationship between a lawyer and a law firm).

8 In Utah, a lawyer qualifies as an “associate” only if he “regularly spends a majority of [his] time working on legal matters for the firm.” Utah State Bar, Ethics Advisory Op. Comm., Op. 04-03 (2004). This standard is too stringent, especially in light of the fact that a lawyer in Georgia is permitted to practice in multiple law firms. State Bar of Ga., Formal Advisory Op. 97-2 (1997).

The second publication of this opinion appeared in the August 2016 issue of the Georgia Bar Journal and was filed with the Supreme Court of Georgia on November 10, 2016. No petition for discretionary review was filed within the 20-day review period, and on December 8, 2016, the Supreme Court of Georgia issued an order declining to review the opinion on its own motion. Accordingly, pursuant to Rule 4-403(d), Formal Advisory Opinion No. 16-3 is an opinion of the Formal Advisory Opinion Board and is binding on the requestor and the State Bar of Georgia, and not on the Supreme Court of Georgia, which shall treat the opinion as persuasive authority only.



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