Can a Michigan law firm name itself after a surname that no lawyer in the firm has, such as the name of a historic building?

Plain-English summary

A four-person firm asked whether it could rename itself "[surname] Law Firm" even though no firm member had that surname. The name came from a historic building, to which the firm was relocating, that had been named after an individual who came to Michigan in 1819, worked as a surveyor and later a bank president, and never practiced law. No attorney licensed in Michigan bore that name.

The Committee applied MRPC 7.5(a), which permits a private-practice trade name that does not imply a connection with a government agency or charitable legal services organization and does not otherwise violate MRPC 7.1, and MRPC 7.1, which bars misleading communications. The Committee reasoned that the policy behind MRPC 7.5 is to prevent unjustified expectations and deception, and that using a surname could be misleading if it implied a lawyer of that name was in the firm. But the Committee analogized to the accepted practice of using deceased partners' names and, citing commentary and Jacoby & Meyers in New York, treated a firm name as an institutional description. It noted that selecting the name of a prominent lawyer or political figure, or pairing the historic name with an actual lawyer's surname, would be misleading, but that identifying the firm with its location in a famous historic building was not.

Discussing Friedman v. Rogers, the Committee observed that trade names are commercial speech whose communicative value is balanced against the potential to deceive, and that while states may prohibit professional trade names, Michigan had chosen not to. Because nothing in the proposed name was misleading, the firm's use of "[surname] Law Firm" did not violate the ethics rules.

Currency note

The State Bar's published version of this opinion notes it has been superseded in part by the addition of MRPC 7.2(d). This opinion was issued in 1993 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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 or requirement mentioned here.

Common questions

Q: Can a law firm use a surname that no one in the firm has?

A: Per the opinion, yes, where the name is not otherwise misleading. The Committee held that a firm may use a common surname even if no lawyer of that name practices there, treating the firm name as an institutional description.

Q: When would such a name be misleading?

A: The opinion concluded that choosing the name of a prominent lawyer or political figure not affiliated with the firm, or combining the borrowed surname with the surname of an actual member, would be misleading by implying those individuals were affiliated with the firm.

Q: Does Michigan allow law firm trade names at all?

A: The opinion noted that, although Friedman v. Rogers held states may prohibit trade names for professional services, the Michigan Supreme Court chose not to do so, so a non-deceptive trade name is permitted under MRPC 7.1 and 7.5.

Background and rules framework

The opinion interprets MRPC 7.5(a) (Firm Names and Letterheads; the Model Rule 7.5 counterpart), allowing non-deceptive private-practice trade names, together with MRPC 7.1 (Communications Concerning a Lawyer's Services). The Committee drew on RI-45, on commentary likening firm names to institutional descriptions, on New York Criminal and Civil Courts Bar Ass'n v. Jacoby, and on Friedman v. Rogers, 440 US 1 (1979).

Citations and references

Rules of Professional Conduct:

• MR 7.1 / MRPC 7.1 (communications concerning a lawyer's services)
• MR 7.5 / MRPC 7.5(a) (firm names; non-deceptive trade names)

Cases:

• Friedman v. Rogers, 440 US 1 (1979), trade names as commercial speech
• New York Criminal and Civil Courts Bar Ass'n v. Jacoby, 61 NY2d 130 (1984), firm name of lawyers not admitted in the state

Other opinions cited:

• RI-45: honest description of a practice and firm names

See also

• Mich Ethics Op. RI-130: Franchising a Law Firm Trade Name
• Mich Ethics Op. RI-144: Firm Name Implying a Partnership
• Mich Ethics Op. RI-90: Retired Shareholder's Name in Firm Name
• Mich Ethics Op. RI-246: "Law Offices" on a Solo's Letterhead

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1043&Type=6

Original opinion text

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

NOTE: This opinion has been superseded in part by the addition of MRPC 7.2(d).

RI-173

October 7, 1993

SYLLABUS

A lawyer may select a common name as the title of the lawyer's firm, even if no individual with that surname practices with the law firm, as long as the selection of the name is not otherwise misleading or deceptive.

References: MRPC 7.1, 7.5(a); Friedman v. Rogers, 440 US 1 (1979).

TEXT

A named person in a four-person law firm inquires whether they may rename the law firm "[surname] Law Firm" even though there are no members of the firm with that surname. The name was selected after an historic building in the town to which building the firm will be relocating.

MRPC 7.5(a) states:

"(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and it is not otherwise in violation of Rule 7.1."

MRPC 7.1 states:

"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

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"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."

The policy behind MRPC 7.5 is to ensure that no unjustified expectations are created for clients or potential clients, and further that clients, potential clients, and others are not deceived or misled in any way. One could argue that the use of a surname in the title implies that a lawyer of that name is a member of the firm and thus would be misleading when this is not the case. Yet, it has been a common practice to allow the use of the surname of deceased partners in law firms, even when those individuals are obviously no longer with the firm. See RI-45. The current proposed situation is no more misleading than the accepted practice of using the surname of a deceased lawyer in a law firm.

It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm. Geoffrey C. Hazard, Jr. and W. William Hodes, in The Law of Lawyering, notes that the "traditional prohibition against use of trade names arose as an adjunct to the rules on lawyer advertising. In the era where such advertising was totally prohibited, some lawyers endeavored to conduct what amounted to law practice under the guise of some other activity, which they then could advertise." It goes on to note that once the prohibitions on advertising were altered in those areas that allow the use of traditional trade names "there appears to be no legitimate reason for barring other non-deceptive trade names . . . ." Id. at 911. It notes that in the case of New York Criminal and Civil Courts Bar Ass'n v. Jacoby, 61 NY2d 130; 460 NE2d 1352; 472 NYS2d 890 (1984), New York's highest court allowed the firm of Jacoby & Meyers to use that name in New York, even though neither of those lawyers then or previously were admitted to practice in the State of New York. The court stated:

"We find no significant differences between the use in a firm name of the surname of a deceased partner and the surname of a partner not practicing in New York. In both instances the firm name is an institutional description."

In the present case, the letterhead of the law firm will indicate the address in a building carrying the same name as the law firm, with the street address following. The building was named after an individual who came to Michigan in 1819. After a short stint as deputy clerk and United States Marshal, the individual became a topographer and surveyor for the Governor of the Territory of Michigan, accompanying him on a 4,400 mile odyssey around the State of Michigan. The individual later became a bank president and was involved in real estate but not in the practice of law. He died in the nineteenth century.

While not essential to this opinion, it should be noted that there is no person listed on the roster of attorneys licensed to practice in the state bearing the name of the historic individual.

Selecting the name of a prominent lawyer or political figure not affiliated with the firm, or selecting the name "[Surname] and X," with X being the surname of one of the lawyers actually in practice, would be misleading. In the latter example, the joining of the name of the historic individual with the surname of one of the lawyers in that firm would suggest that all of the individuals named had a affiliation with the firm in the present or in the past. In the present case, the selection of the name "[Surname] Law Firm" reflects the firm's identification with its location in a famous historical building. On these facts, it cannot be considered to be misleading and is an acceptable means of identification under MRPC 7.1 and 7.5.

In Friedman v. Rogers, 440 US 1 (1979), the Supreme Court upheld the constitutionality of a state licensing agency prohibiting the use of trade names for professional optometry services. Yet, the Court noted that "[t]he use of trade names . . . is a form of commercial speech and nothing more." The Court noted that the potential communicative value of the trade name must be balanced against its potential to deceive or mislead. While the Supreme Court determined that states could prohibit trade names for professional services, the Supreme Court of the State of Michigan has elected not to do so. Because there is nothing misleading in the name proposed, the firm's use of the name does not violate ethics rules.

A law firm may select a common last name as the title of the firm even if no individual with that surname practices with the law firm as long as the selection of the name is not otherwise misleading or deceptive.