Can a law firm call itself 'The Firm of John Smith' or 'John Smith & Associates' if the letterhead lists everyone?

Plain-English summary

A firm proposed to use, effective January 1972, a name in the form of either "The Firm of John Smith" or "John Smith & Associates," with the letterhead and all announcements listing the members of the firm and, separately, the associates. The firm had voluntarily limited its practice to financial and creditor corporations and had built a reputation under the name of John Smith, which it hoped to keep capitalizing on.

The Committee applied DR 2-102(B), which bars a trade name, a name misleading as to the identity of the practicing lawyers, or a firm name containing names other than those of the firm's lawyers, with exceptions for professional corporations and for deceased or retired members in a continuing line of succession. Relying on ABA Opinion 318 (and Opinion 310 sanctioning "and Associates" where employed attorneys do part of the work and all partners and associates are shown on the letterhead), the Committee said the benchmark is that the name not be misleading; "Firm of A. B. Smith" had likewise been approved with the same listings. Noting that local custom is not referenced in the new rule, the Committee saw no ethical objection to the proposed name, provided the inquirer remains in active practice and the letterhead clearly discloses who are in fact members and who are associates. It added that this approval would not apply if the lawyers were merely sharing office space and expenses rather than actually sharing responsibility and liability as a firm, in which case the name would be misleading and improper.

Currency note

This opinion was issued in 1971, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. Firm-name and letterhead rules of this kind are now governed by RPC 7.1 and RPC 7.5. Treat this page as historical context, not current guidance.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: Is "John Smith & Associates" an acceptable firm name?

A: Under this opinion, yes, if it is not misleading: the named lawyer stays in active practice and the letterhead clearly shows who are members and who are associates.

Q: When would such a name be improper?

A: If the lawyers merely share office space and expenses without actually sharing responsibility and liability as a firm, the name would be misleading and improper.

Q: Did local custom against such names matter?

A: No. The Committee noted that the inquirer had not seen the name used in New Jersey, but said local custom is not referenced in the governing rule.

Background and rules framework

The opinion applied DR 2-102(B) on misleading firm names to a name built around a single partner. In current New Jersey terms, firm names and letterheads are governed by RPC 7.1 and RPC 7.5.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B), as in effect 1971; now MR 7.1 / 7.5 and NJ RPC 7.1 / 7.5

Other opinions cited:

• ABA Committee on Professional Ethics Opinion 318 (1967); Opinion 310 (1963): "and Associates" usage; Informal Opinions A-373, A-374 (1960)

See also

• NJ ACPE Op. 223: Interstate Partnerships and Firm Names
• NJ ACPE Op. 330: A Firm Letterhead Listing Associates and an Administrator

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp224-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

94 N.J.L.J. 1206, December 23, 1971

OPINION 224

Firm Name - In Name of One Partner

An advisory opinion is requested with respect to the use of a firm name in a proposed partnership to become effective January 2, 1972. It is proposed that the firm use as its name alternates of the following (1) "The Firm of John Smith"; (2) "John Smith & Associates." The inquirer states that the letterhead and all announcements will include names of members of the firm, and separately the names of the associates. The reason for the choice of the firm name is based upon the fact that because of preference the office has voluntarily limited its practice to representation of financial and creditor corporations, rarely accepting representation in other matters, and has over the years established a reputation which attracts clients of that nature, who know the office as the firm of John Smith. It is in anticipation, and the hope, that such attraction would continue to the benefit of the firm that this choice of firm name has been made.

Disciplinary Rule 2-102(B) adopted by the New Jersey Supreme Court, effective September 13, 1971, now provides:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association shall comply with the laws of the State of New Jersey and the Rules Governing the Courts of the State of New Jersey, indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.

The question of the use of firm names with such appendages has been exhaustively covered in A.B.A. Committee on Professional Ethics, Opinion 318 (1967). The benchmark for decision is that the name be not misleading. Originally, the use of the word "associates" in a partnership name was thought to be objectionable since it denoted mere employment and not partnership. Drinker, Legal Ethics 207 (1953), A.B.A. Committee on Ethics and Professional Responsibility, Informal Opinions A-373 (1960) and A-374 (1960), referred to in Opinion 318, but since the early 1960's the concept of a "professional corporation" or "professional association" has gained popularity and a number of states, including New Jersey, have adopted statutes legalizing such professional associations. R. 1:21-1A now allows the formation of professional corporations for the practice of law in New Jersey.

Accordingly, A.B.A. Committee on Professional Ethics, Opinion 310 (1963) sanctioned the use of the term "and Associates" in conjunction with an individual or partnership name where employed attorneys conduct a portion of the firm's legal business provided that the names of all partners and the names of all associates are shown on the letterhead. The use of a name such as "Firm of A. B. Smith" had been previously approved, Drinker, Legal Ethics 207 (1953), provided the same listings are followed.

Although the inquirer notes that he has never seen this type of firm name used in New Jersey, local custom is not referred to in the new Disciplinary Rule. Accordingly, we see no ethical objection to the use of the proposed name provided that the inquirer remain in active practice and that the letterhead and other permissible listings clearly disclose who are in fact members of the firm and who are associates.

Of course, our approval would not apply if the lawyers were merely practicing law together and sharing office space and expenses, but supposes that there is in fact sharing of responsibility and liability by all members of the firm. If this is not the case, the name would be misleading and improper.