Can a retired judge use a trade name for a business that helps lawyers prepare their court arguments?

Plain-English summary

A retired judge proposed to launch a legal-consulting business that would use her experience to critique and sharpen a lawyer's presentation before the lawyer appeared in court or other proceedings. She asked whether the New York Rules permit her to operate that business under a trade name (¶ 1).

The committee applied Rule 7.5(b), part of the advertising rules, which bars a lawyer in private practice from practicing under a trade name or a firm name containing names other than those of the firm's lawyers. Quoting N.Y. State 869 (2011), it noted that the trade-name prohibition is broad and permits "use of little beyond the names of lawyers presently or previously associated with the firm" (¶¶ 3-4).

The pivot was whether the proposed work is "the practice of law," because Rule 7.5(b) applies to lawyers in "private practice." The committee said it could not decide what constitutes the practice of law for unauthorized-practice purposes, which is a question of law, but it was comfortable assuming that advising lawyers on how best to prepare arguments in court in specific cases is the practice of law, citing N.Y. State 636 (1992) for the principle that when a lawyer performs services a lawyer might provide to a client, the lawyer is held to all professional standards (¶ 5). Treating the work as law practice, the committee added that the consultant could not advise both sides of a litigation on the same argument without violating Rule 1.7's conflict rule and could not reveal confidences learned from each side without violating Rule 1.6 (¶ 6). It concluded the Rules forbid the trade name (¶ 7), while declining to opine on whether informal lawyer-to-lawyer consultations would themselves amount to the practice of law (¶ 6 n.1).

In practice

Under the New York rules as they stood at the time of the opinion, the committee held that a business whose work is the practice of law cannot be operated under a trade name, even by a retired judge and even where the clients are other lawyers. The opinion does not resolve the underlying unauthorized-practice question in the abstract; it assumes the described work (critiquing and honing a specific court argument) is law practice and applies Rule 7.5(b) on that assumption. The committee also flagged that practicing law in this way carries Rule 1.7 conflict and Rule 1.6 confidentiality obligations where the consultant works with opposing lawyers in the same matter.

Common questions

Q: Is coaching a lawyer on a court argument the practice of law?

A: The committee assumed so. It declined to define the practice of law (a question of law) but said it was comfortable assuming that advising a lawyer on how best to prepare a specific argument for court is the practice of law (¶ 5).

Q: Why can't the business use a trade name?

A: Because Rule 7.5(b) bars a lawyer in private practice from practicing under a trade name, and the committee treated the consulting business as the practice of law (¶¶ 3, 7).

Q: Does it matter that the clients are lawyers rather than the public?

A: The opinion does not carve out an exception for lawyer clients. It applied the trade-name rule to the business as law practice, and separately noted Rule 1.7 and Rule 1.6 duties if the consultant advised opposing lawyers in the same matter (¶ 6).

Background and rules framework

The opinion interprets New York Rule of Professional Conduct 7.5(b) (trade names and firm names), which at the time corresponded to ABA Model Rule 7.5, along with Rule 1.7 (concurrent conflicts) and Rule 1.6 (confidentiality), corresponding to Model Rules 1.7 and 1.6. The trade-name analysis turns on whether the actor is "in private practice," which the committee tied to whether the work is the practice of law.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / NY RPC 7.5(b) (trade names; firm names)
• MR 1.7 / NY RPC 1.7 (conflict of interest; current clients)
• MR 1.6 / NY RPC 1.6 (confidentiality)

Cases:

• In re Shephard, 459 N.Y.S.2d 632 (3d Dep't 1983), "The People's Law Firm" was a prohibited trade name
• In re von Wiegen, 63 N.Y.2d 163 (1984), "the Country Lawyer" placed below a lawyer's name was a motto, not a trade name

Other opinions cited:

• N.Y. State 869 (2011): trade-name prohibition is broad
• N.Y. State 948 (2012): firm name may not include "The Business Dispute Clinic"
• N.Y. State 636 (1992): when a lawyer performs lawyer-type services, professional standards attach
• ABA 98-411: consulting another lawyer without intent to engage may not create a client relationship

See also

• NY State Bar Op. 1082: Providing legal services through a nonlawyer-owned company
• NY State Bar Op. 1081: Lawyers employed by a debt management company

Source

• Landing page: https://nysba.org/ethics-opinion-1075/