Can two Kentucky lawyers who are not partners hold themselves out as 'Jones & Jones,' and can a lawyer be a partner in more than one law firm?

Plain-English summary

The committee answered two questions. First, whether two lawyers who are not partners may hold themselves out as "Jones & Jones" on a letterhead or otherwise. It answered no. The committee anchored that answer in DR 2-102(C), which provides that a lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners. Reaffirming KBA E-62, the opinion explained that there is no such thing as a limited partnership as far as responsibilities and liabilities are concerned: the public is inclined to believe the firm's entire resources are available, so lawyers who work independently, keep separate records, and do not jointly share responsibilities and liabilities must not hold themselves out as a partnership.

Second, whether a lawyer may be a member of more than one law firm. The committee gave a qualified yes. The Code did not specifically address being a partner in two distinct firms. Drawing on ABA Formal Opinion 330, the committee noted the ABA had recognized that under highly unusual circumstances a lawyer could be designated "of counsel" to two firms where a continuing relationship exists. The committee said it knew of no opinion precluding a lawyer from being a partner in more than one firm, but cautioned about the conflicts that arise. It pointed to DR 5-105(D): where one lawyer must decline or withdraw from employment, no partner or associate of that lawyer or the firm may accept or continue it. The practical effect is that when one lawyer in one firm is precluded, all members of both firms are precluded. Citing the difficulties shown in Cinema 5, Ltd. v. Cinerama, Inc., the committee concluded that membership in more than one firm is permissible only where the lawyer has a close, continuous, and regular relationship with the firm, and added that it would be impossible to maintain such a relationship with more than two firms.

Currency note

This opinion was issued in 1982 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. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can lawyers who are not partners use a firm name like "Jones & Jones"?

A: No. The opinion concluded that DR 2-102(C) bars holding oneself out as a partnership where the lawyers are not in fact partners, because the name misleads the public about the firm's shared responsibilities and resources.

Q: Is there such a thing as a partial or limited partnership for firm-name purposes?

A: No. Reaffirming KBA E-62, the committee said there can be no limited partnership as far as responsibilities and liabilities are concerned; lawyers who do not jointly share those must not hold themselves out as partners.

Q: Can a lawyer be a partner in two different law firms at once?

A: The committee gave a qualified yes, permissible only where the lawyer has a close, continuous, and regular relationship with the firm. It also said maintaining that kind of relationship with more than two firms would be impossible.

Q: What conflict concern did the committee flag for a lawyer in two firms?

A: Imputed disqualification under DR 5-105(D). When one lawyer in one firm is required to decline or withdraw, all members of both firms are likewise precluded from that employment.

Background and rules framework

The opinion applies the Code's firm-name and holding-out rule (DR 2-102(C), with DR 2-102(A) and (D)) and the imputed-disqualification rule (DR 5-105(D)). The modern analogs are Model Rule 7.1 and Model Rule 7.5 (firm names and communications that must not be false or misleading) and Model Rule 1.10 (imputation of conflicts within a firm). The committee treated the firm name as a communication about the lawyers' actual relationship and treated dual firm membership as a question governed primarily by conflicts and imputed disqualification.

Citations and references

Rules of Professional Conduct:

• DR 2-102(A)(C)(D) (firm names and letterheads); DR 5-105(D) (imputed disqualification); EC 2-11, 2-12; modern analogs Model Rules 7.1, 7.5, and 1.10

Cases:

• Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976), problems of a lawyer with interests in more than one firm

Other opinions cited:

• ABA Formal Opinion 330 ("of counsel" to two firms); KBA E-62 and KBA E-83 (firm names and partnership designations)

See also

• KBA Ethics Op. E-246: 'And Associates' Firm Name
• KBA Ethics Op. E-298: Congressman on Letterhead
• KBA Ethics Op. E-261: False Yellow-Pages Listing

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-259.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-259
Issued: May 1982

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 1:

May two lawyers list on the letterhead or by other means "Jones & Jones" when in fact there is no partnership?

Answer 1:

No.

Question 2:

May a lawyer be a member of more than one law firm?

Answer 2:

Qualified yes.

References:

DR 2-102(A)(C)(D), 5-105(D); ABA Formal Opinion 330; KBA E-62, 83; EC 2-11, 2-12; Cinema 5, Inc v. Cinerama, Ltd, 528 F.2d 1384 (2d Cir 1976)

OPINION

Question 1
The listing on the letterhead of the names of the lawyers in a law firm is well defined within the Code of Professional Responsibility. Specifically the Ethical Considerations mention that the possibility of misleading persons with whom the lawyer deals could be a factor in the selection process of the lawyer. It is with this reason that the Code of Professional Responsibility states under DR 2-102(C): "A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners."
In KBA E-62 we answered the question, "May associates who have a relationship that is something less than a true partnership adopt a firm name?" in the negative. In that opinion we stated:
It is both improper to designate a lawyer as an 'associate' who shares fully in the responsibilities and the liabilities of other attorneys in the office, and it is improper to utilize the term "partner" to designate an attorney who does not share fully in the responsibilities and liabilities of the other attorneys involved.

KBA E-62 went on to point out that there can be no such thing as a "limited partnership as far as responsibilities and liabilities are concerned." The opinion stated:
In such situations the public is inclined to believe that the entire mental and legal resources of the firm are available, if need be. So long as the attorneys work independently of one another, maintain separate records, and refrain from jointly sharing responsibilities and liabilities they must refrain from holding themselves out as a partnership.
This Committee reaffirms KBA E-62 as well as DR 2-102(C). A lawyer who practices under a misleading name certainly violates the Code of Professional Responsibility and commits acts which tend to bring the Bench and Bar into disrepute.
Question 2
The Code of Professional Responsibility does not specifically address the question of whether a lawyer may be a partner in two different and distinct law firms. See ABA Formal Opinion 330. In this opinion the ABA recognized that a lawyer could become "of counsel" in two firms under highly unusual circumstances.
The American Bar Association relied upon DR 2-102(A)(4) in stating that "a lawyer may be designated 'of counsel' on a letterhead" if he has a continuing relationship with the lawyer or law firm, other than as a partner or associate.
The Ethics Committee is aware of no opinions which would preclude a lawyer from being a partner in more than one law firm. A lawyer who desires to be a partner in more than one law firm should be aware of the myriad of conflicts of interest that would be present. More specifically the lawyer should always be leery of DR 5-105(D): "If a lawyer is required to decline employment or to withdraw from employment under DR 5-105, no partner or associate of his or his firm may accept or continue such employment."
Accordingly when one lawyer in one law firm would be precluded from the employment all members of the law firm as well as members of the other law firm would be precluded from the employment.
It is not the function of this Committee to consider the wisdom of a lawyer being a partner (and/or associate, of counsel) in more than one law firm. For a case showing the problems of a partner in more than one law firm, see Cinema 5, Ltd v. Cinerama, Inc, 528 F.2d 1384 (2d Cir 1976). Assuming that there is a valid reason for the lawyer to be in more than one law firm and that that lawyer has a "close, continuous and regular relationship with the law firm it is permissible."
The Ethics Committee, however, feels that it would be impossible to have a close, continuous and regular relationship with more than two law firms.

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.