Can a law firm run a mediation department under a separate trade name and list nonlawyer mediators on its letterhead?

Plain-English summary

A lawyer asked about establishing a mediation department in his firm that would use the trade name "Sunshine Mediation" on its letterhead, correspondence, and billing (styled "Sunshine Mediation, The Mediation Department of [the law firm]"), and would hire nonlawyer mediators as independent contractors listed on the letterhead. The committee noted that bar members may engage in business activities other than law, but where, as here, the business is conducted through the law firm and closely associated with the practice of law, the activity must be conducted in conformity with the Rules of Professional Conduct.

Applying that principle, the committee reached three conclusions. First, nonlawyer mediators employed by the firm may not have an ownership interest in either the firm or the mediation department, because that would implicate the rules against sharing fees with nonlawyers, partnership with nonlawyers, and assisting the unauthorized practice of law (Rules 4-5.4(a), 4-5.4(b), and 4-5.5(b)). Second, the lawyer advertising rules apply to any advertising done by the department, since advertising by a department within a firm is advertising by the firm itself, and nonlawyer mediators may be listed on the letterhead only if their nonlawyer status is clearly indicated.

Third, the committee concluded it would be improper for the firm to use the "Sunshine Mediation" trade name for its mediation department. Rule 4-7.7 (now Rule 4-7.21) permits non-misleading trade names, but only if the trade name is used in all aspects of the firm's practice, including the firm name, letterhead, business cards, office sign, fee contracts, and pleadings; the plain language of the rule does not allow limiting a trade name to a single department within the firm.

Currency note

This opinion was issued in 1995, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The opinion notes the trade-name and advertising rules it cites (then Rules 4-7.7 and 4-7.1 through 4-7.7) correspond to current Rules 4-7.21 and 4-7.11 through 4-7.22.

Common questions

Q: Can a Florida law firm operate a mediation department?

A: Under this opinion, yes, but the department must be conducted in conformity with the Rules of Professional Conduct because it is run through the firm and closely associated with the practice of law.

Q: Can nonlawyer mediators own part of the firm's mediation department?

A: Per the opinion, no; that would implicate the rules against sharing fees and forming partnerships with nonlawyers and assisting the unauthorized practice of law (Rules 4-5.4(a), (b) and 4-5.5(b)).

Q: Can the department use a separate trade name like "Sunshine Mediation"?

A: The committee concluded no; a trade name must be used in all aspects of the firm's practice and may not be limited to a single department (Rule 4-7.7, now Rule 4-7.21).

Q: Can nonlawyer mediators appear on the firm letterhead?

A: Under the opinion, only if their nonlawyer status is clearly indicated.

Background and rules framework

The opinion applied the rules against sharing fees and forming partnerships with nonlawyers and assisting unauthorized practice (Rules 4-5.4(a), (b) and 4-5.5(b); Model Rules 5.4 and 5.5) and the lawyer advertising and trade-name rules (then Rules 4-7.1 through 4-7.7, now 4-7.11 through 4-7.22, including Rule 4-7.21; Model Rules 7.1 and 7.5).

Citations and references

Rules of Professional Conduct:

• Model Rule 5.4 / Fla. Rules 4-5.4(a), (b) (sharing fees and partnership with nonlawyers)
• Model Rule 5.5 / Fla. Rule 4-5.5(b) (assisting the unauthorized practice of law)
• Model Rule 7.5 / Fla. Rule 4-7.7 (firm names and trade names; now Rule 4-7.21)
• Model Rule 7.1 / Fla. Rules 4-7.1 through 4-7.7 (advertising; now 4-7.11 through 4-7.22)

Other opinions cited:

• Fla. Ethics Ops. 86-4, 86-8 (withdrawn), 88-15, 89-4, 90-7 (withdrawn); Arizona Opinion 88-5; Illinois Opinion 90-32

See also

• FL Bar Ethics Op. 00-1: Keeping a Retired Partner's Name in the Firm Name
• FL Bar Ethics Op. 98-3: In-House Insurance Counsel and Firm Names
• FL Bar Ethics Op. 02-8: Referral Fee From a Securities Dealer and Ancillary Business

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-94-6/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-94-6-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 94-6
April 30, 1995
Advisory ethics opinions are not binding.
A law firm may operate a mediation department within the firm. The mediation practice must be conducted in conformity with the Rules of Professional Conduct. Consequently, nonlawyers employed by the firm's mediation department may not have an ownership interest in the firm or its mediation department, the attorney advertising rules will apply to any advertising by the mediation department, and the mediation department may not use a proposed trade name because that trade name is not the name under which the firm practices.
RPC: 4-5.4(a), 4-5.4(b), 4-5.5(b), 4-7.7 [See current 4-7.21]
Opinions: 86-4, 86-8, 88-15, 89-4, 90-7; Arizona 88-5, Illinois 90-32

A member of the Florida Bar requests an opinion regarding the propriety of establishing and operating a mediation department in his law firm. The inquiring attorney states that the department would use the trade name "Sunshine Mediation." The mediation department would use this trade name on its letterhead in all correspondence and billing. The letterhead would state "Sunshine Mediation, The Mediation Department of [the law firm]." The mediation department also wishes to hire nonlawyer mediators as "independent contractors" and to list the nonlawyers on the letterhead.

Florida Bar members may participate in business practices other than law. See, e.g., Florida Ethics Opinions 86-8 [withdrawn], 88-15, and 90-7 [withdrawn] for a discussion of ethical considerations that are applicable when an attorney engages in dual professions. Where, as in the inquirer's situation, the business practice is conducted through the law firm and is closely associated with the practice of law, the Committee is of the opinion that the mediation practice must be conducted in conformity with the Rules of Professional Conduct (Chapter 4, Rules Regulating The Florida Bar). See, e.g., Arizona Opinion 88-5 and Illinois Opinion 90-32.

Consequently, in the situation presented the Committee is of the opinion that any nonlawyer mediators employed by the inquirer's law firm may not have an ownership interest in either the law firm or the mediation department. To do so would implicate rules prohibiting sharing fees with nonlawyers, partnership with nonlawyers, and assisting in the unauthorized practice of law. See Rules 4-5.4(a), 4-5.4(b), and 4-5.5(b).

The Committee also is of the opinion that the lawyer advertising rules (Rules 4-7.1 through 4-7.7 [See current Rules 4-7.11 through 4-7.22]) will apply to any advertising done by the mediation department of the law firm. Advertising by a department within a law firm must be considered advertising by the law firm itself. Regarding letterhead, nonlawyer mediators employed by the firm may be listed on the letterhead only if their nonlawyer status is clearly indicated. Florida Ethics Opinion 86-4 and 89-4.

The Committee further concludes that, under the circumstances described, it would be improper for the law firm to use the trade name "Sunshine Mediation" for its mediation department. Rule 4-7.7 [See current Rule 4-7.21] permits the use of non-misleading trade names by law firms, but only if the trade name is used in all aspects of the law firm's practice, including the firm name, letterhead, business cards, office sign, fee contracts, and pleadings. The plain language of the rule does not allow the limitation on the use of the trade name to a department within the firm.