May a Kentucky lawyer practice law for profit under a trade name, given that ABA Model Rule 7.5 permits non-misleading trade names?

Plain-English summary

The Committee was asked whether a Kentucky lawyer may practice law for profit under a trade name, for a proposed multi-jurisdiction partnership of professional service corporations and individuals. The lawyer argued that ABA Model Rule 7.5 permits non-misleading trade names, that Kentucky's version of the rule is silent on the point, and that the Attorneys' Advertising Commission's approval (given "from an advertising point of view only") settled the matter. The Committee answered "No."

The opinion recalled KBA E-302 (1985), which could not approve a franchised trade-name arrangement under the Code because DR 2-102(B) prohibited trade names and DR 2-102(C) barred a lawyer from holding out a partnership that did not in fact exist. On appeal, the Supreme Court in Simon v. Kentucky Bar Association, 742 S.W.2d 959 (Ky. 1988), rejected lawyer trade names in strong terms and declined to adopt the ABA's permissive version. When the bar's Model Rules Committee recommended the ABA's Rule 7.5 (which allows a non-misleading trade name), the Court deleted that permissive language and much of the commentary from the final rule.

The opinion acknowledged the requestor's textual argument (silence is not a prohibition, so only false or misleading names are barred) was plausible in the abstract, but concluded the rule must be read in light of Simon and the Court's deletions. The Committee's view was that the Court intended the rule to carry forward the same prohibition as the Code, so Kentucky lawyers may not practice under trade names. It noted a franchising arrangement would be improper even under a trade name to the extent it implies a partnership whose members are responsible to the client when that is not so (Rule 7.5(d)), and flagged Rule 7.5(b) on disclosing jurisdictional limitations.

Currency note

This opinion was issued in 1990, before the substantial 2009 revisions to Kentucky's Rules of Professional Conduct (SCR 3.130) and before later amendments to the advertising and firm-name rules. The opinion's editorial header notes Rule 7.5 was later revised and renumbered as Rule 7.50. 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 Treat this page as historical context, not current guidance.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: Could a Kentucky lawyer practice under a trade name at the time of this opinion?

A: No. The opinion concluded Kentucky lawyers may not practice under trade names, reading Rule 7.5 to carry forward the Code's prohibition.

Q: Doesn't Model Rule 7.5 allow non-misleading trade names?

A: The ABA version does, but the opinion noted the Kentucky Supreme Court deleted that permissive language from the rule it adopted and rejected lawyer trade names in Simon v. KBA.

Q: Did Advertising Commission approval resolve the trade-name question?

A: No. The opinion noted the commission approved the proposal "from an advertising point of view only" and referred the propriety of trade-name practice to the Ethics Committee, which found it impermissible.

Background and rules framework

The opinion interprets Kentucky's adopted Rule 7.5 (firm names and letterhead; Model Rule 7.5, later renumbered Rule 7.50) against the backdrop of former DR 2-102(B) and (C) and the Supreme Court's decision in Simon v. Kentucky Bar Association. The Court's deletion of the ABA's trade-name language was treated as decisive of the rule's meaning.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / KRPC 7.5 (later Rule 7.50; firm names and trade names)
• DR 2-102(B), DR 2-102(C) (former Code; trade names and false partnership holding-out)

Cases:

• Simon v. Kentucky Bar Association, 742 S.W.2d 959 (Ky. 1988), Court rejects lawyer trade names

Other opinions cited:

• KBA E-302 (1985)

See also

• KBA Ethics Op. E-389: False Partnership Name
• KBA Ethics Op. E-396: Common Firm Names
• KBA Ethics Op. E-377: Mediation Corporation Trade Name

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-338.pdf

Original opinion text

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

Kentucky Bar Association
Ethics Opinion KBA E-338
Issued: June 1990

Since the adoption of the Rules of Professional Conduct in 1990, the Kentucky Supreme
Court has made substantial revisions to the rules governing the advertisement of legal
services. For example, this opinion refers to Rule 7.5, which was revised and renumbered
as Rule 7.50. Lawyers should consult the current version of the rules and comments, SCR
3.130, (available at http://www.kybar.org) and the Attorneys' Advertising Commission
Regulations, before relying on this opinion.

Question:

May a Kentucky lawyer privately practice law for profit under a trade name?

Answer:

No.

References:

DRs 2-102(B) and (C), Rule 7.5, and Simon v. Kentucky Bar Association, 742
S.W.2d 959 (Ky. 1988).
OPINION

This question was presented by a lawyer who wishes to use a trade name for a "partnership
of PSC's and individuals in the private practice of law for profit, conducted in more than one
jurisdiction." The lawyer's proposal was approved by the Attorneys' Advertising Commission
"from an advertising point of view only," and otherwise referred to the Ethics Committee for
consideration of the propriety of practice under a trade name.
The requestor-lawyer points out that ABA Model Rule 7.5 permits lawyers to use trade
names, and that the Kentucky version of the Rule is silent as to the use of trade names. It is also
argued that approval under the SCR governing advertising (and the Attorneys' Advertising
Commission) resolves the matter.
The Committee is quite familiar with the trade name issue, and dealt with this same
question in KBA E-302 (1985). A lawyer wanted to organize his office under a name (Simon &
Simon) and franchise the use of it as a trade name for use by other independent firms*. The
Committee was unable to approve of this arrangement under the Code, since DR 2-102(B)
prohibited trade names, and since DR 2-102(C) prohibited a lawyer from "holding himself out as
having a partnership with one or more lawyers unless they are in fact partners." This was simply
not a matter for interpretation. This opinion was appealed to the Supreme Court. In Simon v.
Kentucky Bar Association, 742 S.W.2d 959 (Ky. 1988) the Court rejected the use of trade names
by lawyers in what may fairly be characterized as "strong terms":
Movants request this Court to change the above-mentioned Rules and
Commentary and adopt a new rule which is part of the Model Rules of the 1984

American Bar Association permitting such practice. This we decline to do. See DR
2-102(A), (B), (C), (D); Model Rule 7.5.
The KBA Model Rules Committee (chaired by the Ethics Committee Chairman)
recommended adoption of the ABA version of Rule 7.5. That Rule permits a lawyer to practice
under a non-misleading trade name. However, the Court deleted the language permitting the use of
trade names (as well as much of the commentary to the Rule) from the final version of the Rule.
The requestor makes an argument for interpretation of the Rule that is plausible in the
abstract: silence is not a prohibition, and in the absence of an explicit prohibition, the Rule
prohibits only names which are false and misleading (the Rule permits non-deceptive trade names).
However, the Committee concludes that the Rule must be interpreted in light of certain "history",
to wit, the Supreme Court's views as expressed in Simon and the actions taken by the Court in
adopting the Model Rules.
It is the opinion of the Committee that Kentucky lawyers may not practice under trade
names, and that the Court intended the Rule to effect the same prohibitions as the Code.
It goes without saying that this opinion may be appealed to the Supreme Court, or that
appropriate change or clarification may be sought through a Rule change.
*We also note that for purposes of this question we have assumed that the organization
contemplated will be a true partnership, as opposed to a franchising arrangement. Such franchising
arrangements would appear to be improper even under a trade name, to the extent that they imply
that the lawyers practice in a partnership or other organization whose members are fully
responsible to the client when that is not the fact. See Rule 7.5(d). See also 7.5(b) regarding
disclosure of jurisdictional limitations.

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.