Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Use of a firm name indicating a partnership when, in fact, there is no partnership.
Rule 1 of the Rules of Professional Conduct of the State Bar of California.1
American Bar Association Code of Professional Responsibility, Disciplinary Rule 2-102.
The opinion of this Committee has been requested concerning the ethical propriety of the use of a common "firm name" on letterheads, on office doors, and in professional listings by attorneys who share only common overhead expense, there being no joint and several responsibility or liability among them.
The Committee has no facts as to whether the attorneys involved occupy offices in a law suite or whether the attorneys associate with each other in certain cases. The Committee thus assumes that these conditions are not present and that the attorneys involved are holding themselves out as a "partnership" when no partnership in fact exists.
This Committee also has been asked that it recommend to the State Bar of this state that it incorporate in its Rules of Professional Conduct specific rules prohibiting such a practice and, by reference, adopting the position of the American Bar Association which condemns such a practice as misleading and ethically improper.
The questions posed are:
1. Is it a violation of the State Bar Act for several attorneys who are not "true partners" to list their names together as a single firm name on a letterhead or office door or in an approved law list?
2. If such conduct would constitute a violation of the State Bar Act, under what circumstances are attorneys considered to be "true partners," so that they would not be in violation?
The Rules of Professional Conduct of the State Bar of California contain no specific provisions covering the questions involved. However, rule 1 of the Rules of Professional Conduct provides "that the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar."
The American Bar Association Code of Professional Responsibility, canon 2, states:
"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 laymen concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a partnership name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in 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 if he only shares offices with another lawyer.
"DR 2-102, subdivision (C). A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners."
Prior to the adoption of the Code of Professional Responsibility, [former] canon 33 and opinions rendered by the former Committee of Professional Ethics of the American Bar Association uniformly held that the arrangement referred to in question 1 above was improper since the firm name falsely suggested the existence of a partnership when there was none and was, in addition, an assumed or trade name as well. (See ABA Committee on Prof. Ethics, Opinions Nos. 310 (1963), 219 (1941), 126 (1935) and 106 (1934). Opn. No. 607, Assn. of the Bar of the City of New York. Cf. opn. No. 290 of the L. A. Co. Bar Assn. Committee on Legal Ethics.)
It is this Committee's opinion that the stated practice or custom is ethically improper and has been uniformly so adjudged in earlier opinions. Additionally, this Committee is of the opinion that such conduct could be in violation of the spirit and principle of the State Bar Act because of the deceptive nature of the trade name employed. (See, for example, Bus. & Prof. Code, Section 6128, subd. (e).)
Further, rule 2, subdivisions (a) and (b), of the Rules of Professional Conduct set forth permissible guidelines as to solicitation of professional employment by advertisement.
This Committee, while recognizing that there is no specific rule in the State Bar Act covering the situation presented, nevertheless is persuaded that the admonition contained in rule I of the Rules of Professional Conduct, to wit: "that the Code of Professional Responsibility of the American Bar Association should be noted by the members of the State Bar" is sufficient in itself to put all on notice that minimum standards of professional conduct by the members should conform to standards of the American Bar Association Code of Professional Responsibility.
While question 2 is posed as an ethical question, it appears to be essentially legal in nature. The question of "under what circumstances are attorneys considered true partners" is a question of law on which this Committee expresses no opinion. For example, the Committee does not determine that the assumption of joint and several liability by associated lawyers, as described in opinion No. 290 of the Committee on Legal Ethics of the Los Angeles County Bar Association, supra, would necessarily constitute a true partnership.
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 [PUBLISHER'S NOTE: A complete revision of the Rules of Professional Conduct was approved by the Supreme Court effective January 1, 1975. (See (1975) 14 Cal.3d Rules 1 and "Cross Reference of Present Rules of Professional Conduct to Former Rules of Professional Conduct," in Part III. D.)]
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