Formal Opinion 178
(1984)
Misleading Firm Names Are Prohibited
Conclusion:
(1) Attorneys who are not partners may not hold themselves out as partners by using the term "law offices."
(2) It is inherently misleading for a sole practitioner to use the term "and associates" when there are in fact no associates.
(3) The "of counsel" designation can be used only in limited circumstances.
Discussion:
An inquiry has been received as to whether sole practitioners sharing office space may use the same letterhead under the title, "Law offices of Smith, Jones and Black."
The Code of Professional Responsibility prohibits attorneys from holding themselves out as having a partnership with one or more other lawyers unless they are in fact partners. DR 2-102(C).
The purpose of this rule is to avoid deceiving the public about a lawyer’s professional relationships, as EC 2-13 explains:
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.
In order to avoid any potential for misleading the public, lawyers merely officing together must have separate letterheads, cards, pleading paper and telephone listings, although they may use a common telephone line or number.
This rule has an advantage for lawyers who are not in fact partners, since it avoids potential claims that all members of the "law office" are liable for one member’s malpractice. Nothing in this opinion should be construed as prohibiting a true partnership from using the term "law offices" in the firm name.
Similarly, a lawyer should not use a fictitious composite such as "Jones & Brown" where Jones is deceased and either (a) there never existed prior to Jones’ death a genuine partnership between Jones and Brown or (b) Brown’s assumption of Jones’ name is based on his occupancy of the office space occupied by Jones prior to his death. This practice is a misrepresentation and should not continue.
(2) It is inherently misleading for a sole practitioner to use the term "and associates" when there are in fact no associates.
The use of the term "and associates" in a firm name implies that the named lawyer or lawyers have other attorneys working for them, which if true is not objectionable. If, however, there are no other lawyer employees, it is inherently deceptive to use the "and associates" designation.
(3) The "of counsel" designation can be used only in limited circumstances.
"Of counsel" is not the appropriate designation where the lawyer is a partner, associate, or an outside consultant, or a forwarder-receiver of legal business, or one merely sharing office space. To be listed as "of counsel," the lawyer must be an active member of the Washington State Bar Association and have a close, i.e. regular and frequent, continuing relationship with the lawyer or law firm, for example, the relationship of a retired or semi-retired former partner who remains available to the firm for consultation and advice.
[See RPC 7.1, 7.5]
