Can a solo lawyer add a semi-retired 'of counsel' lawyer's name to the firm name, calling the firm 'A and B'?

Plain-English summary

Lawyer A had practiced 50 years in a small town and wished to cut down his activities and stop running his own office. Lawyer B practiced alone in the same town. A agreed to become "of counsel" to B's firm and to be available for consultation on a regular basis at B's office. B asked whether he could call the firm "A and B."

The Commission analyzed the question under Bar Rule 3.9(b), which it (and the Grievance Commission) had used to test whether a firm name is misleading or deceptive, citing prior opinions on retained, withdrawn, and deceased-partner names. It reasoned that the name "A and B" suggests the relationship is more than office-sharing: that to the extent A practices, he does so in conjunction with B; that A and B consult on a continuing basis and otherwise cooperate; and that they share some significant level of mutual responsibility for the firm's clients. The Commission concluded that if all of those factors describe the actual relationship, the name would not be misleading or deceptive and would be permissible. It further concluded that a consequence of using that name and relationship is that the clients of each lawyer would be considered clients of the other for all purposes of the Bar Rules, including confidentiality and avoidance of conflicts, citing Rule 3.4(k). One member would have found the designation to violate Rule 3.9(b)(3); that view treated the opinion as silently overruling Opinion No. 14 (which declined to approve "Law Associates" for lawyers unwilling to assume full partnership responsibility) and as forbidden by ABA Model Rule 7.5(d), reasoning that the sole purpose of the name was to create an unjustified expectation that the semi-retiring attorney is an active partner responsible for partnership debts.

Currency note

This opinion was issued in 1988, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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.

Common questions

Q: Can a solo practitioner name the firm "A and B" after adding an of-counsel lawyer?

A: The opinion concluded it is permissible only if the relationship is in fact more than office-sharing, involving ongoing mutual consultation and shared responsibility for the firm's clients.

Q: When would the name be misleading?

A: The opinion's analysis (and a dissenting member) indicated the name would be improper if it creates an unjustified expectation, under Rule 3.9(b)(3), that the of-counsel lawyer is an active partner when the underlying relationship is not what the name implies.

Q: What follows from using a shared firm name?

A: The opinion concluded that the clients of each lawyer would be considered clients of the other for all purposes of the Bar Rules, including confidentiality and conflicts of interest, citing Rule 3.4(k).

Background and rules framework

The opinion interprets former Maine Bar Rule 3.9(b) (firm names that are misleading or deceptive), including subsection (b)(3) (creating an unjustified expectation), and Rule 3.4(k) (imputation among lawyers treated as a firm). These correspond to ABA Model Rule 7.5 (firm names and letterheads), including 7.5(d) (stating or implying a partnership only when true), which the dissenting member invoked. The opinion situates itself among prior Maine opinions on firm names (Grievance Commission Opinions 13 and 14; Professional Ethics Commission Opinion 77).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 (firm names and letterheads), including 7.5(d)
• Maine Bar Rule 3.9(b), including 3.9(b)(3); Rule 3.4(k)

Other opinions cited:

• Maine Grievance Commission Opinions 13 and 14; Professional Ethics Commission Opinion 77

See also

• ABA Formal Op. 90-357: Use of the "Of Counsel" Designation
• ABA Formal Op. 507: Office Sharing With Lawyers

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91474

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: August 31, 1988

Question

Lawyer B asks whether it is permissible under the Maine Bar Rules for him to call his law firm "A and B" under the following circumstances. Lawyer A, who has practiced law for 50 years in a small town, is planning on cutting down his activities and no longer wishes to run his own law office. Lawyer B has been practicing law by himself in that town. Lawyer A has agreed to become "of counsel" to Lawyer B's law firm and to be available for consultation on a regular basis at the office of Lawyer B. Under these circumstances, Lawyer B asks whether he may call his law firm "A and B."

Opinion

In determining whether a firm name is permissible under the Rules, the Professional Ethics Commission and the Grievance Commission have considered whether a given firm name is misleading or deceptive under Maine Bar Rule 3.9(b). See Grievance Commission Opinion No. 13 (impermissible for a firm to retain in firm name the name of a former member of the firm who has withdrawn from the firm to become a public official); Grievance Commission Opinion No. 14 (impermissible for two lawyers who have separate practices and offices in separate towns and who do not accept full partnership liability to use a joint letterhead, captioned, "Law Associates"); Professional Ethics Commission Opinion No. 77 (permissible for a firm to retain a deceased partner's name in the firm's business title without indication that the named lawyer is deceased).

Under the circumstances presented by this inquiry, the firm name, "A and B," suggests that the relationship between Lawyers A and B is more than an office-sharing arrangement; that to the extent that Lawyer A is practicing law, he is practicing law in conjunction with Lawyer B; that Lawyers A and B consult with each other on a continuing basis and otherwise cooperate with each other; and that Lawyers A and B share some significant level of mutual responsibility in connection with providing professional services to clients of the firm.

If all of these factors constitute the fact of the relationship between Lawyers A and B, the Commission concludes that under the circumstances of this inquiry, it would not be misleading or deceptive and would, therefore, be permissible for Lawyers A and B to call their law firm, " A and B." The Commission further concludes that a consequence of the use of that firm name and that relationship between Lawyers A and B is that the clients of each of them would be considered clients of the other for all purposes of the Maine Bar Rules, including those provisions respecting the maintenance of client confidences and secrets and avoidance of conflicts of interest. See Maine Bar Rule 3.4(k).

One member of the Commission would find that the proposed firm designation violates Rule 3.9(b)(3). This opinion silently overrules Opinion No. 14 which declined to approve the use of the former name "Law Associates" by attorneys who, like A, were unwilling to assume the full responsibility of partnership status. It is also forbidden by Rule 7.5 of the A.B.A. Model Rules of Professional Conduct which states that:

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

The present situation is distinguishable from that in which a retiring or deceased partner's name is retained in the firm name because in the typical case, that name has become identified with a law firm as an institution rather than with the participation of individual members of the firm. In such circumstances, the purpose of the retention is to avoid confusing the public by changing a familiar label. In the present case, the sole purpose of the proposed firm designation is to "create an unjustified expectation" in violation of Rule 3.9(b)(3) that the semi-retiring attorney is a partner who is active in the firm as well as being responsible for partnership debts.