May one Nebraska law firm use different trade names and different lawyer listings for offices in separate cities?

Plain-English summary

A Nebraska firm acquired a sole practitioner's office in another city. The former sole practitioner remained active there as of counsel, and the firm wanted a separate trade name for each city office.

Rules 7.1 and 7.5 permit trade names but prohibit false or misleading communications about firm organization, lawyer association, or services. A trade name may include an active lawyer's name and may not suggest a relationship that does not exist.

Using the former sole practitioner's name with the purchasing firm's lawyer names accurately reflects the continued relationship at the acquired office. The harder issue is preventing clients from thinking the two names identify separate firms when they are actually offices of one organization.

Because "associated" or "affiliated" ordinarily describes separate firms, that wording would not accurately explain this structure. The firm instead must communicate directly that the former sole practitioner and both locations belong to the same firm and correct any known or reasonably apparent client misunderstanding.

The Committee concludes that letterhead for both offices should display both trade names, with the lawyers practicing at each office listed under the respective name. That presentation proactively identifies the single-firm relationship and satisfies the Rules on the stated facts.

In practice

Under this opinion, different office names are permissible only with contextual clarity. The trade names, lawyer rosters, letterhead, and direct client explanation must work together to show the actual organization.

Common questions

Q: May one firm use a different trade name for each city office?

A: Yes, if the presentation is accurate and not misleading.

Q: May the acquired office continue using the former sole practitioner's name?

A: Yes, because the lawyer remained actively associated with that office as of counsel.

Q: Why not describe the offices as affiliated firms?

A: They are not separate firms; they are two offices of one firm, so affiliation language could misstate the relationship.

Q: What should the letterhead show?

A: Both trade names and the lawyers practicing at each respective office.

Q: What if a client appears confused about the relationship?

A: The firm has an affirmative obligation to correct a misimpression it knows or reasonably should know exists.

Background and rules framework

Rule 7.5 governs firm names and letterheads, including trade names and truthful statements about organization. Rule 7.1 supplies the general prohibition against material misrepresentation or omission.

Citations and references

Nebraska Rules of Professional Conduct:

• Neb. R. Prof. C. §§ 3-507.1 and 3-507.5

Cases:

• Bates v. State Bar of Arizona, 433 U.S. 350 (1977), truthful commercial speech
• Friedman v. Rogers, 440 U.S. 1 (1979), deceptive trade names
• In re R.M.J., 455 U.S. 191 (1982), potentially misleading information

Other opinions cited:

• ABA Formal Opinions 94-388 and 84-351
• New York City Ethics Opinion 1995-8

See also

• Nebraska Ethics Op. 19-02: Trade name and entity designation
• Louisiana Op. 07-RPCC-012: Law-practice trade names
• Washington Ethics Op. 1902: One lawyer, two offices, one trade name

Source

• Landing page: Nebraska lawyer ethics opinions archive
• Original PDF: Nebraska Ethics Advisory Opinion 12-01

Original opinion text

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

NEBRASKA ETHICS ADVISORY OPINION FOR LAWYERS

No. 12-01

A Nebraska Law Firm May Operate in Different Cities with Different Trade Names and Different Attorneys

QUESTION PRESENTED

Whether a Nebraska Law Firm may operate in different cities with different trade names and different attorneys.

Factual Overview

A Nebraska firm purchased a law practice from a sole practitioner in another

Nebraska city. The sole practitioner continues to practice with the firm in his old office

and is officially listed as “of counsel” status on the firm’s letterhead for that office only.

The Firm desires to create separate trade names for their original office and their newly-

acquired office in another city.

To avoid creating confusion among its clients throughout Nebraska, the Law Firm

needs to clearly communicate that the sole practitioner in another city is a member of the

firm, just operating out of a different office than the firm’s main office. The challenge in

the present case is that there are not two firms with separate identities – there is one firm

with two offices with the desire to have a different trade name in place for each of the

offices. That would preclude use of “associated” or “affiliated” language to link the two

offices. The Firm would have to explain the relationship between itself and the sole

practitioner, to every client that used the sole practitioner’s office purchased by the firm.

Perhaps the firm should consider listing the sole practitioner as “of counsel” in

both of its offices’ names. That would demonstrate an attempt to avoid confusion.

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Avoiding confusion and preventing misleading information to be publicized are the

objectives of this present case.

THE APPLICABLE RULE AND COMMENTS

Starting with the basic Rules of Professional Conduct, Rules 3-507.1 and 3-507.5

are instructive:

§ 3-507.5. Firm Names and Letterheads

(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:

(1) the trade name includes the name of at least one of the lawyers practicing under said name. A law firm consisting solely of the name or names of deceased or retired members of the firm does not have to include the name of an active member of the firm;

(2) the trade name does not imply a connection with a government entity, with a public or charitable legal services organization or any other organization, association or institution or entity, unless there is, in fact, a connection; and

(3) the trade name 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.

COMMENT

[1] A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm's identity. 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, or the name of a nonlawyer.

[2] With regard to paragraph (d), lawyers sharing office facilities, but who are not in fact associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.

§ 3-507.1. Communications Concerning a Lawyer's Services

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A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

With these above two rules, the firm needs to make sure the relationship between

the partners of that firm are clearly articulated to clients of the former sole practitioner’s

office that will go by a name which includes the former sole practitioner’s office. How to

do this successfully is where the two firms run into trouble.

While not specifically applicable in the present case, a lawyer who opens a solo

practice may conduct his or her business under any trade name that does not constitute a

false or misleading communication about the lawyer or the lawyer’s services. A solo

practitioner must take care, however, to insure that clients and potential clients are not

misled as to the nature of his or her practice.

Rule 3-507.1(a) generally provides that: "A lawyer shall not use a firm name,

letterhead or other professional designation that violates Rule 3-507.1." Rule 3-507.1(a),

in turn, prohibits lawyers from making a "false or misleading communication"

concerning the lawyer or the lawyer’s services. A statement is false or misleading if it:

contains a material misrepresentation of fact; omits a fact necessary to make the

statement considered as a whole not materially misleading; or contains an assertion about

the lawyer or the lawyer’s services that cannot be sustained. Id. § 3-507.1(a).

This general prohibition on materially misleading representations is applied to law

firm names, in part, through Rule 3-507.5(d), which provides: "Lawyers may state or

imply that they practice in a partnership or other organization only when that is the fact."

Thus, for example, lawyers who share office facilities but who are not, in fact, partners

may not denominate themselves as, say, "Smith and Jones" because that title suggests a

2856 partnership in the practice of law that does not in fact exist. Rule 3-507.5, Comment [2].

More broadly, one may not use the name of a particular lawyer as part of the firm’s name

if the lawyer is not associated with the firm or is not a predecessor of the firm. Id. at

Comment [1].

Courts have applied Rule 3-507.5 and its commentary in a manner that furthers

the general prohibition on a misleading firm name. Thus, it is commonplace that a firm

name must reflect accurately the nature of the entity that bears it and the nature of the

relationship of the lawyers who are affiliated with it. Since the former sole practitioner

remains an active participant at his old office, along with lawyers from the purchasing

firm’s office, using their names in the trade name for that office complies with Rule 3-

507.5 (and, therefore, 3-507.1). The use of the former sole practitioner’s name with the

other partner names in the formation of a trade name for the former sole practitioner’s

office does not create the confusion that Rules 3-507.1 and 3-507.5 are trying to prevent.

How to link the two offices while at the same time avoiding confusion is the next step in

this present scenario.

The possibility for confusion between these two offices is particularly acute as the

connection between and amongst the members of the differently named entities requires

an explanation. If two lawyers who share offices maintain a continuing relationship akin

to that of "of-counsel" association, they may hold themselves out as such, though they

may not take the next step of misleadingly practicing under a trade name such as "Law

Offices at X Square" which implies a unitary relationship. See N.Y. City Ethics Op.

1995-8 (1995); see also ABA Informal Op. 85-1511 (1985) (firm may name itself "The X

Partnership" where X is a retired former partner).

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 Where the question is whether a particular form of firm name might mislead

members of the public, the public’s actual confusion (or lack thereof) seems germane to

the inquiry. It is, therefore, worth asking whether the public could actually be confused

by the fact that the former sole practitioner’s office is actually a second office for the law

firm.

As Rule 3-507.5, comment [1] explains, any analysis of trade names’ use should

take into account broader constitutional considerations. The United States Supreme Court

has held that the First Amendment protects commercial speech and that the public,

generally, has a right to receive truthful and non-deceptive information. See Bates v. State

Bar, 433 U.S. 350 (1977) (commercial speech serves individual and societal interests in

assuring informed and reliable decision-making). To be sure, a state may regulate trade

names where their use is deceptive, see Friedman v. Rogers, 440 U.S. 1 (1979), but the

First Amendment clearly prohibits the regulation of lawyer speech where such regulation

is based merely on speculative harms. E.g. In re RMJ, 455 U.S. 191 (1982) (rejecting

restriction on listing expertise); Peel v. Attorney Registration and Disciplinary Com’n of

Illinois, 496 U.S. 91 (1990) (rejecting restriction on advertisement as trial specialist);

Ibanez v. Florida Dept. of Business and Prof. Regulation, 512 U.S. 133 (1994) (rejecting

listing of CPA qualification). As the Supreme Court has said: "[T]he States may not place

an absolute prohibition on certain types of potentially misleading information. . . if the

information also may be presented in a way that is not deceptive." In re RMJ, 455 U.S. at

203.

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 Thus, at a minimum, in interpreting the Nebraska Rules of Professional Conduct,

one should err on the side of permitting lawyers to choose their own trade names unless

there is a clear indication that the name is deceptive or misleading.

Cases and opinions on lawyer’s speech make clear that the context of trade

names, and their relationship with other trade-named firms, matters. Specifically, two

firms may reflect their association with each other - but only in a manner that

contextually makes clear the nature of their relationship. See ABA Formal Op. 94-388

(1994) (provides that if firms retain their own separate identities, but represent that they

are an "associated" or "affiliated" firm of another firm, this form of networking is

permissible under Rule 3-507.1 and 3-507.5 provided the clients receive "information

that will tell them the exact nature of the relationship and extent to which resources of

another firm will be available in connection with the client's retention of the firm that is

claiming the relationship."); ABA Formal Op. 84-351 (1984) (law firms may list

themselves as "Affiliated" or "Associated," so long as communications regarding the

nature of the firms’ relationship are clear and not misleading).

Conclusion

Practitioners should exercise caution to insure that the manner in which they

conduct their practice does not, in context, mislead clients or potential clients.

Practitioners are also affirmatively obligated to correct any misimpression that might

arise whenever they know or reasonably should know that a client may be confused. The

steps that the firm proposes to take to inform their former sole practitioner’s clients is a

necessity. In addition, it would benefit the firm if they amended their letterhead to more

closely resemble the letterhead of both offices.

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 To avoid confusion, the letterhead of both offices should have both trade names

with the names of the attorneys practicing at the respective offices listed under the

respective trade name. This would show that the firm has proactively demonstrated the

relationship between the two trade names while actively attempting to clarify the

relationship between the two offices. These steps are required to be in compliance with

Rules 3-507.1 and 3-507.5.

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