Can a lawyer practice under a name different from the one on file with the bar, or use a pen name for writing unrelated to law?
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This page answers the general question as of 2012. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The opinion addressed two scenarios: a lawyer who will keep practicing under her current surname but use her married name socially, and a lawyer who writes murder mysteries and wants to use a pen name. The Committee started from the general rule that a person may adopt any name absent a fraudulent or improper motive, citing Arizona cases.
For the practice of law, however, ER 7.1 controls. The Committee concluded that practicing under a name materially different from the one on the State Bar's records is at least misleading, because a client or third party given the different name may be unable to verify the lawyer's eligibility to practice, find the lawyer's contact information, check any disciplinary history, or learn whether the lawyer carries malpractice insurance. A lawyer who wants to change the practice name must follow the procedures for changing it on the bar's records. The opinion noted that immaterial differences, such as a common nickname (Robert/Bob), do not raise the concern.
For activities that are not the practice of law, the Committee concluded a lawyer may use any name. A lawyer who changes her name on marriage may keep practicing under the former name and use the married name socially, and a lawyer who writes books or articles may use a pen name, without violating the rules, as long as there is no fraudulent or improper motive.
In practice
Under this opinion, an Arizona lawyer should make sure the name used in the practice of law matches the name on the State Bar's records, updating the bar's records before practicing under a new name; a materially different practice name risks being treated as misleading under ER 7.1. The opinion treats nicknames and other immaterial variations as outside the concern, and it leaves lawyers free to use married names or pen names for non-law activities absent an improper motive. Because what counts as "material" is fact-specific, confirm the current bar name-change procedures before relying on a particular approach.
Common questions
Q: Can a lawyer practice under a different name than the one the bar has on file?
A: Per the opinion, not if the difference is material; doing so can be misleading under ER 7.1. The lawyer must change the name on the State Bar's records first.
Q: Does a common nickname count?
A: No. The opinion treated immaterial differences such as common nicknames (for example Robert and Bob) as not raising the ER 7.1 concern.
Q: Can a lawyer use a pen name for writing novels?
A: Yes. The opinion concluded that for activities that are not the practice of law, a lawyer may use any name or pen name absent a fraudulent or improper motive.
Background and rules framework
The opinion applied ER 7.1, which bars false or misleading communications about a lawyer or the lawyer's services, treating a materially different practice name as misleading because it impairs a client's ability to verify the lawyer. It relied on Arizona name-change cases (Malone v. Sullivan; Laks v. Laks) and on South Carolina Op. 07-05 for the treatment of names used outside the practice of law.
Citations and references
Rules of Professional Conduct:
- MR 7.1 (communications concerning a lawyer's services; false or misleading)
Cases:
- Malone v. Sullivan, 124 Ariz. 469, 605 P.2d 447 (1980), right to adopt a name absent improper motive
- Laks v. Laks, 25 Ariz. App. 58, 540 P.2d 1277 (1975), name change without legal proceedings
Other opinions cited:
- South Carolina Ethics Op. 07-05 (2007): names used for non-law activities
See also
- Oregon Ethics Op. 2005-101: Trade Names and the Lawyer-Mediator
- Arizona Ethics Op. 96-06: Out-of-State Lawyers and Letterhead Designations
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
ER 7.1prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services. Under this rule, the name under which a lawyer practices law may be misleading if, for example, it is materially different from the name appearing on the records of the State Bar of Arizona. On the other hand, a lawyer may, for purposes of engaging in an activity that does not constitute the practice of law, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so.
FACTS
As appears from the records of the State Bar of Arizona, Susan Formername is a lawyer. In the near future, she intends to marry Robert Newname. She will continue to practice law as “Susan Formername,” but, after her marriage, plans to be known for social and personal purposes, unrelated to the practice of law, as Susan Newname.
A person who is admitted to practice law in Arizona writes murder mystery novels. He wishes to use a pen name or other pseudonym when writing the novels.
Are the activities described above ethically permissible?
A lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
South Carolina Op. 07-05
“The general rule applicable to a change of name is that a person may, in the absence of a fraudulent or improper motive, adopt any name by which he chooses to be known.” Malone v. Sullivan, 124 Ariz. 469, 470, 605 P.2d 447, 448 (1980). “In the absence of a statutory restriction, one may lawfully change his name without resort to legal proceedings.” Laks v. Laks, 25 Ariz. App. 58, 60, 540 P.2d 1277, 1279 (Div. 2 1975) (internal citations omitted).
A lawyer who is engaged in the practice of law, however, is bound by ER 7.1, which provides in relevant part that “[a] lawyer shall not make or knowingly permit to be made on the lawyer’s behalf a false or misleading communication about the lawyer or the lawyer’s services.” In our view, a lawyer who practices law under a name materially1 different from that which appears on the records of the State Bar of Arizona makes a statement about himself or herself that is at least misleading. A client or other third party who is given the different name may not be able to verify the lawyer’s eligibility to practice law, obtain the lawyer’s address, telephone number, or other contact information, learn about any prior disciplinary history that the lawyer may have, or determine whether the lawyer carries professional liability insurance. If a lawyer desires to change the name under which he or she practices law, the lawyer must follow the applicable procedures for effecting such change of name on the records of the State Bar of Arizona.
A lawyer who engages in an activity that does not constitute the practice of law, may, for the purpose of engaging in that activity, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so. Thus, a lawyer who changes his or her name upon marriage may continue to practice law under the former name and use the married name for personal or social purposes unrelated to the practice of law. See South Carolina Op. 07-05 (July 19, 2007).2 A lawyer who writes books or articles, or who otherwise engages in an activity that does not constitute the practice of law, may, for purposes of engaging in that activity, adopt a pen name or pseudonym, without violating the Rules of Professional Conduct.
CONCLUSION
ER 7.1 prohibits a lawyer from making false or misleading communications about the lawyer or the lawyer’s services. Under this rule, the name under which a lawyer practices law may be misleading if, for example, it is materially different from the name appearing on the records of the State Bar of Arizona. On the other hand, a lawyer may, for purposes of engaging in an activity that does not constitute the practice of law, adopt any name by which the lawyer chooses to be known, so long as the lawyer has no fraudulent or improper motive for doing so.
Formal opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. This opinion is based on the Ethical Rules in effect on the date the opinion was published. If the rule changes, a different conclusion may be appropriate.
©State Bar of Arizona 2012
Op. 12-02
1What constitutes a “material” difference will depend on the facts of each case. Immaterial differences include the use of a common nickname (e.g. Charles – Chuck, Richard – Dick, Robert – Bob, etc.).
2We express no view on that portion of the South Carolina opinion that discusses whether a law firm may retain, as parto of its name, the former surname of lawyer who now practices under a different surname.
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