Can independent Michigan law firms that work together use joint letterhead, call themselves 'affiliated,' and refer conflicted clients to each other?

Plain-English summary

The opinion addressed a law firm that proposed to enter an "affiliation" with two or three other specialized, independently managed firms, so the group could offer clients a wider range of expertise without the overhead of a large firm. The lawyer who brought in a client would monitor the work and keep the client; a client worked on by a team would normally get one bill unless the lawyers agreed to bill separately. The firms asked whether they could use joint letterhead, whether they could call the relationship "affiliated" without further explanation, and whether a client could be referred to an affiliated firm when the first firm had a conflict.

On joint letterhead, the Committee said no. Reviewing C-230 (lawyers in separate professional corporations who sometimes worked together could not use joint letterhead even with an "association of professional corporations" disclaimer), RI-45, and RI-130, it concluded that joint letterhead would infer the lawyers are in one firm when they are not, making it misleading under MRPC 7.1 and 7.5. The firms could use joint advertising, but only if the advertising clearly delineated the relationship by disclosing that the independent lawyers do not operate as one firm. On the word "affiliation," the Committee knew of no settled, specialized meaning that made it appropriate or inappropriate; it could not conclude the term was false or deceptive on the facts given, but found its meaning unclear and in need of further explanation, because under MRPC 1.4(b) and 7.1 terminology that does not convey an accepted meaning is deceptive by implying a meaning that does not exist.

On the conflict question, the Committee gave only a general answer, having no specific fact situation. Because one lawyer oversaw a matter from start to finish while others in the affiliation might work on parts of it, the lawyers had presumably obtained the client's permission to share confidences (MRPC 1.6) and to share the fee (MRPC 1.5(e)). Whether lawyers working together are imputedly disqualified when one of them has a conflict, the Committee said, is partially determined by the facts of the particular case, and it collected authorities reaching different results depending on the closeness of the association and whether confidential information was exchanged.

Currency note

This opinion was issued in 1994 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, deadline, or requirement mentioned here.

Common questions

Q: Can independent law firms use a shared, joint letterhead?

A: No. The opinion concluded joint letterhead, even with a disclaimer, would infer the lawyers are in one firm when they are not, and would be misleading under MRPC 7.1 and 7.5 (citing C-230, RI-45, RI-130).

Q: Can the independent firms advertise together?

A: The opinion concluded yes, so long as the advertising clearly delineates the relationship by disclosing that the independent lawyers do not operate as one firm.

Q: Can they describe their relationship as an "affiliation"?

A: Per the opinion, only with clarification. The Committee knew of no settled meaning for "affiliation" in this context; left unexplained, the term is unclear and could be deceptive by implying a meaning that does not exist (MRPC 1.4(b), 7.1).

Q: If one firm has a conflict, can it refer the client to an affiliated firm?

A: The opinion gave only a general answer absent specific facts: whether lawyers working together are imputedly disqualified turns on their exact relationship and the facts of the case, and the Committee cited authorities reaching different results.

Background and rules framework

The opinion interprets MRPC 7.5(a) and (d) / Model Rule 7.5 (firm names and stating or implying a partnership), MRPC 7.1 / Model Rule 7.1 (misleading communications), and MRPC 1.4(b) / Model Rule 1.4 (explaining a matter so the client can make informed decisions). On the conflict question it touches MRPC 1.5(e) / Model Rule 1.5 (fee division among lawyers not in the same firm), MRPC 1.6 / Model Rule 1.6 (confidentiality), and MRPC 1.7 / Model Rule 1.7 (conflicts and imputed disqualification).

Citations and references

Rules of Professional Conduct:

• MRPC 7.5(a), (d) / Model Rule 7.5 (firm names; stating or implying a partnership)
• MRPC 7.1 / Model Rule 7.1 (communications about the lawyer's services)
• MRPC 1.4(b) / Model Rule 1.4 (explaining a matter to the client)
• MRPC 1.5(e) / Model Rule 1.5 (fee division among lawyers not in the same firm)
• MRPC 1.6 / Model Rule 1.6 (confidentiality)
• MRPC 1.7 / Model Rule 1.7 (conflicts and imputed disqualification)

Cases:

• Skokie Gold Standard Liquors v. Joseph E. Seagram & Sons Inc, 452 NE2d 804 (Ill App 1983), association in the practice of law and imputed disqualification
• Brennan's Inc v. Brennan's Restaurants Inc, 590 F2d 168 (CA5 1979), co-counsel not imputedly disqualified absent exchange of confidences
• Jensen v. Touche Ross & Co, 335 NW2d 720 (Minn 1983), "of counsel" not imputedly disqualified

Other opinions cited:

• C-230; RI-45; RI-116; RI-130; R-17: joint letterhead and firm-name limits for lawyers not in the same firm
• ABA Op. 1315: "of counsel" may be imputedly disqualified

See also

• ABA Formal Op. 94-388: Relationships Among Law Firms
• ABA Formal Op. 507: Office-Sharing Arrangements
• Mich Ethics Op. RI-212: Dual-Profession Letterhead

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=1070&Type=6

Original opinion text

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

RI-200

March 29, 1994

SYLLABUS

Lawyers who are not in fact in the same law firm may not use joint letterhead.

Lawyers who are not in the same law firm may use joint advertising, as long as the advertising clearly delineates the relationship between the firms and does not infer that the independent lawyers operate as one firm.

Communications about services available from a number of independent law firms may not describe the relationship between the firms to be an "affiliation" without further clarifying the meaning of the term.

Whether lawyers who are not in the same law firm, but who regularly refer cases to each other or work together on cases, are disqualified when one of them has a conflict of interest depends upon the exact relationship between the independent lawyers and the facts of the particular case.

References: MRPC 1.4(b), 1.5(e), 1.6, 1.7, 7.1, 7.5; R-17; C-230; RI-45, RI-116, RI-130.

TEXT

A law firm proposes to enter into an "affiliation" with two or three other "specialized" law firms to provide clients with more complete legal counsel and to expand the scope of their client relationships. Although each of the firms is operated and managed independently, they intend the "affiliation" to enable them to undertake matters in various "specialties" as needed without the high overhead costs incurred by large law firms. The lawyer who brings the client into the office monitors the work progress and retains the client after the work is finished. When a team of lawyers works on a case, the client normally gets one bill, unless it is agreed that each lawyer will send a separate bill. The lawyers within the "affiliation" are free to accept any case they deem appropriate for their particular practice and to personally control the growth of their own law firm. The lawyers ask:

• May they may use joint letterhead?

• May the term "affiliated" be used on letterhead and other communications without further explanation?

• If one firm has a conflict of interest, may the client be referred to one of the affiliated firms?

MRPC 7.5(a) and (d) state:

"(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.

". . .

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

MRPC 7.1 states in pertinent part:

"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:

"(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."

Whether lawyers who are not in fact in the same firm may share a firm name, letterhead or other joint communication about services has been addressed in other opinions. In C-230 lawyers who belonged to separate professional corporations, but from time to time worked on cases together on a contract basis, were prohibited from using joint letterhead, even with a disclaimer that the lawyers were "an association of professional corporations." See also, RI-59; CI-111, CI-298. In RI-45 a partner-shareholder who left a partnership-professional corporation but continued to share office space with the firm, could not continue to be listed on the letterhead of the former partnership-professional corporation or be included in the former firm's firm name. In RI-130 a lawyer was prohibited from franchising a trade name under which a number of lawyers who are not in fact in a partnership or professional corporation relationship hold themselves out as practicing under one firm name.

These opinions were based upon interpretations of MRPC 7.1 and 7.5, and their predecessors. The inquirers may not use joint letterhead, even with a disclaimer, since the joint letterhead would infer that the lawyers are in one firm when that is not the case, and would therefore be misleading. The lawyers may use joint advertising, as long as the advertising clearly delineates the relationship between the firms by disclosing that the independent lawyers do not operate as one firm.

As the inquirer describes the relationship between the firms, the firms intend to offer clients expertise in more fields of practice by pooling their services; the arrangement is called an "affiliation." The Committee is unaware of any particular specialized meaning of the term "affiliation" which makes the term appropriate or inappropriate to describe the firms' relationship. Without additional facts we are unable to conclude that the proposed use of the term "affiliation" is false, fraudulent, deceptive or misleading, but its meaning in the context presented is definitely unclear and would require further explanation. See MRPC 1.4(b). If the terminology does not clearly convey an accepted meaning it is deceptive by implying some non-existent meaning. MRPC 7.1.

Finally, the inquirer asks if one firm has a conflict of interest, may the client be referred to one of the affiliated firms? The Committee has not been provided with a specific fact situation in which a conflict has arisen, and thus any response to the question posed must be general in nature.

The facts indicate that one lawyer oversees the case from beginning to end, although other lawyers in the affiliation may work on parts of the case. If this is so, then the lawyers have presumably obtained the client's permission to share confidences and secrets [MRPC 1.6], share the fee [MRPC 1.5(e)], etc. Whether lawyers working together on a case are imputedly disqualified when one of them has a conflict is partially determined by the facts of the particular case. See, e.g., "The exact relationship is immaterial, so long as they were in some way associated in the practice of law," Skokie Gold Standard Liquors v. Joseph E. Seagram & Sons Inc, 452 NE2d 804 (Ill App 1983); if no confidential information is exchanged, co-counsel is not imputedly disqualified, Brennan's Inc v. Brennan's Restaurants Inc, 590 F2d 168 (CA5 1979); "of counsel" may be imputedly disqualified ABA Op i1315; "of counsel" not imputedly disqualified, Jensen v. Touche Ross & Co, 335 NW2d 720 (Minn 1983).