Can a solo principal call the firm 'A & Associates' when the only other lawyers are 'of counsel'?
NY State Bar Ethics Opinion 1137: "A & Associates" with "of counsel" lawyers
Short answer: A law firm with one principal and two lawyers properly designated "of counsel" may call itself "A & Associates," because "of counsel" lawyers are "associated" with the firm, provided those lawyers truly have the close, continuing, personal relationship that the "of counsel" designation requires.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York Rules of Professional Conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.
About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.
Plain-English summary
Lawyer A practices in a firm with one departing partner and two lawyers designated "of counsel," whose relationship the inquirer describes as "continual day-to-day" and who are covered by the firm's malpractice policy. After the partner leaves, A wants to call the firm "A & Associates." The question is whether that name is a prohibited trade name or misleading under Rule 7.5(b) when the only other lawyers are "of counsel."
The committee assumes the two lawyers are properly designated "of counsel," which under Rule 7.5(a)(4) and prior opinions (N.Y. State 955, 788, 773; ABA Op. 90-357) requires a close, regular, continuing, personal relationship; whether that test is met is a question of fact for the inquirer. The committee then asks whether "of counsel" lawyers are "Associates" for the firm name. The Rules do not define "associate" or "associated," but both the Rules and prior opinions treat lawyers with various relationships, including "of counsel," as "associated" with a firm; for example, Rule 1.10(a) imputes conflicts among lawyers "associated" in a firm, and the committee and courts have held "of counsel" lawyers are associated for imputation purposes (N.Y. State 876, 793, 788, 773).
Given that, the committee concludes the public would not understand "Associates" to be limited to non-partner employees titled "associate." So "A & Associates" is permissible if the of-counsel lawyers meet the designation's test. To satisfy Comment [1]'s direction to be "scrupulous in the representation of professional status," the firm may, if it lists C and D, clarify that they are "of counsel." The committee contrasts N.Y. State 931 (a solo may not use "and Associates" based on employing a paralegal).
In practice
Under this opinion, a solo principal whose only other lawyers are properly designated "of counsel" may name the firm "A & Associates," because "of counsel" lawyers are "associated" with the firm. The permission depends on the of-counsel designation being genuine (a close, continuing, personal relationship, which is a factual question for the firm) and on the firm being scrupulous about professional status, for instance by identifying those lawyers as "of counsel" where it lists them. The result differs where the only other personnel are nonlawyers, such as a paralegal (N.Y. State 931).
Common questions
Q: Can a solo principal use "A & Associates" if the other lawyers are only "of counsel"?
A: Yes, if the of-counsel lawyers are properly designated. The committee holds "of counsel" lawyers are "associated" with the firm, so they support an "Associates" name (Opinion 1137 ¶¶ 9-13).
Q: What makes an "of counsel" designation proper?
A: A close, regular, continuing, personal relationship with the firm, beyond merely sharing offices. Whether that exists is a factual question for the firm (¶¶ 7-8).
Q: Could a solo use "and Associates" based on employing a paralegal?
A: No. N.Y. State 931 found that improper; "Associates" must rest on lawyers associated with the firm, not nonlawyer staff (¶ 12).
Background and rules framework
The opinion applies Rule 7.5(b) (Model Rule 7.5) on firm names and misleading names, with Rule 7.5(a)(4) on the "of counsel" designation, Rule 1.10(a) (Model Rule 1.10) on imputation among "associated" lawyers, and Rule 8.4(c) (Model Rule 8.4) on misrepresentation. New York amended Rule 7.5 effective June 24, 2020; the prohibition on names misleading as to the lawyers' identity, on which this permissive holding rests, remains, so verify the current rule text before relying on the specific provisions cited here.
Citations and references
Rules of Professional Conduct:
- New York Rule 7.5(a)(4), (b) (Model Rule 7.5): "of counsel" designation; firm names
- New York Rule 1.10(a) (Model Rule 1.10): imputation among "associated" lawyers
- New York Rule 8.4(c) (Model Rule 8.4): deceit or misrepresentation
Other opinions cited:
- N.Y. State 955 (2005); N.Y. State 788 (2005); N.Y. State 773 (2004): the "of counsel" continuing-relationship test
- N.Y. State 876 (2011); N.Y. State 793 (2006): "of counsel" lawyers are associated for imputation
- N.Y. State 931 (2012): a solo may not use "and Associates" based on a paralegal
- ABA Formal Op. 90-357 (1990): the "of counsel" relationship and title
See also
- NY State Bar Op. 1233: "And Associates" in a solo practitioner's firm name
- NY State Bar Op. 1167: Law firm name using multiple surnames
- NY State Bar Op. 1138: English translation of a surname as a firm name
Source
- Landing page: https://nysba.org/ethics-opinion-1137/