Can a Kentucky law practice incorporated as a P.S.C. operate under the name 'John Doe & Associates,' and may it use 'and Lawyers' or 'and Attorneys' instead?

Plain-English summary

The committee was asked whether, given KRS 274.077 (which lets a professional service corporation do business under an assumed name), a law practice organized under KRS Chapter 274 may practice using one member's name plus a term like "Associates." It answered with a qualified yes.

DR 2-102(B) barred a trade name, a name misleading as to the identity of the lawyers practicing under it, or a firm name containing names other than those of lawyers in the firm, while allowing corporate or association symbols. Tracing the ABA's path (Formal Opinion 219 had found "and Associates" misleading as negating a partnership; Formal Opinion 310 then sanctioned the term to denote a structure where an individual or partnership employs lawyers who are not partners; and Formal Opinion 318 approved "associates" following a professional corporation's name as a proper way to indicate the members' limited responsibility), the committee adopted the same view, noting the New York State Bar's parallel position that a firm employing two or more associates may use "and Associates."

The committee concluded a professional service corporation may practice as one member's name "and associates" provided two or more associates are employed. It drew a line at "and Lawyers" or "and Attorneys," calling those potentially misleading because a member of the public could infer a distinction in professional status between the named member and the "lawyers" or "attorneys." It also restated that a partnership between a lawyer and a non-lawyer for the practice of law would violate DR 3-103.

Currency note

This opinion was issued in 1981 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Kentucky firm-name and advertising rules are now in SCR 3.130 Rules 7.01 to 7.50. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Could a Kentucky P.S.C. call itself "John Doe & Associates"?

A: Yes, with a condition. The committee concluded the designation is proper as long as the corporation actually employs two or more associates.

Q: Could the firm use "and Lawyers" or "and Attorneys" instead?

A: The committee viewed those as potentially misleading, reasoning the public could infer a distinction in professional status between the named member and the unnamed "lawyers" or "attorneys."

Q: Did the opinion allow a lawyer to partner with a non-lawyer in the practice?

A: No. It restated that a partnership between a lawyer and a non-lawyer involving the practice of law would violate DR 3-103.

Background and rules framework

The opinion interprets DR 2-102(B) of the former Code (firm names; no trade names or names misleading as to the lawyers practicing under them) together with DR 3-103 (no lawyer/non-lawyer partnership for the practice of law) and the corporate authority of KRS Chapter 274 and KRS 274.077. The modern analogs are Model Rule 7.1 (communications about a lawyer's services) and Model Rule 7.5 (firm names and letterheads). The committee's test was whether the chosen designation accurately conveys the firm's structure to the public.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B) (firm names; misleading designations); modern analog Model Rule 7.5
• DR 3-103 (no lawyer/non-lawyer partnership for the practice of law)

Statutes:

• KRS Chapter 274; KRS 274.077 (professional service corporation; assumed name)

Other opinions cited:

• ABA Formal Opinions 219, 310, 318 (use of "and Associates"); New York State Bar Opinion 286, 45 NYSBJ 280 (1973).

See also

• KBA Ethics Op. E-274: Partner as a Professional Service Corporation
• KBA Ethics Op. E-298: Partner's Name on Letterhead After Election to Congress

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-246.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-246
Issued: July 1981

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May an attorney, John Doe, who is incorporated in accordance with KRS Chapter 274, practice law under the designation John Doe & (Associates), (Lawyers), (Attorneys) P.S.C.?

Answer:

Qualified yes.

References:

DR 2-102(B), 3-103; KRS 274.077; ABA Formal Opinion 219, 310, 318; 45 NYSBJ 280 (1973)

OPINION

The Committee is asked to render an opinion whether, in light of KRS 274.077, permitting a professional service corporation to do business under an assumed name, a law firm organized pursuant to KRS Chapter 274 may engage in the practice of law under a designation employing the name of one member and the term " Associates," or other like appellation.

DR 2-102(B) provides in pertinent part:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of the professional corporation or professional association may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization....

In ABA Formal Opinion 318, the Committee on Professional Ethics reviewed its former prohibition of the use of "and Associates," in a firm name, and subsequent relaxation of that prohibition in ABA Formal Opinion 310. In Formal Opinion 219 the Committee determined that the use of the term "and Associates" was misleading and hence a violation of Canon 33 (predecessor of DR 2-102(B)) because it negatived the existence of a partnership.

In Formal Opinion 310, the Committee sanctioned the use of the term "and Associates" to denote a firm structure in which an individual or partnership employed other lawyers who did not share partnership status. The thrust of the opinion then, was to ensure that the public was apprised of the true nature of the firm organization. Similarly, in approving the concept of professional service corporations, the Committee warned that such organizations must see to it that the public is not misled concerning the restrictions on the responsibilities of individual lawyers for the legal services they perform. Thus, in Formal Opinion 318, the Committee held:

[The use of the term "associates" following the name of one or more members of a professional corporation or association is a proper method of indicating the limited responsibility of the members of such an organization.

The New York State Bar Association has taken a similar position, holding, in Opinion 286, that a firm which employs two or more associates may use the appellation "and Associates," 45 NYSBJ 280 (1973).

Accordingly, this Committee concludes that a professional service corporation may conduct the practice of law under the name of one member "and associates" provided two or more "associates" are employed by the corporation. Use of the terms "and Lawyers" or "and Attorneys" is, however, potentially misleading, there being a remote possibility that a member of the public could infer a distinction in professional status between the named member and the "lawyers" or "attorneys." Partnership between a lawyer and a non-lawyer, involving the practice of law, would, of course, violate DR 3-103.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.