Could a New York lawyer open a New York branch of an out-of-state firm and practice under the firm's trade name, where the firm's home state permits trade names?

Plain-English summary

A lawyer admitted in New York wanted to open a New York office for a law firm whose main office is in California, where the firm practices under a well-established trade name (permitted in California since 1979). The lawyer acknowledged that New York's Rules did not allow trade names but argued that barring the California name in New York would strip the firm of the goodwill in the name. The lawyer also asked whether the California firm could instead establish a New York presence using only lawyers not admitted in New York.

The opinion concluded the answer to the first question was no. Rule 7.5(b), as then written, provided that a lawyer in private practice "shall not practice under a trade name," a name misleading as to identity, or a firm name containing names other than those of the firm's lawyers. The committee read the prohibition as broad, "permitting little beyond the names of lawyers presently or previously associated with a law firm" (quoting N.Y. State 1168 and 869). It cited its consistent precedents that a New York office cannot operate under a name lacking a current or former partner's name (N.Y. State 861), and that a New York-only lawyer cannot be of counsel, an associate, or a partner of an out-of-state firm practicing under a trade name (N.Y. State 1023). It concluded no circumstances let a New York lawyer ethically practice under a trade name in New York even where another state allows it.

The committee noted the lawyer was not entirely deprived of the name's goodwill: nothing prevented truthfully stating in advertising and branding that the New York firm is elsewhere known as the trade name. On the second question, whether a California firm staffed only by non-New York lawyers could open a New York presence, the committee declined to opine, treating it as a question of unlawful practice under Judiciary Law § 478 that is law, not ethics.

Currency note

This opinion was issued on January 17, 2020, and applied New York Rule 7.5(b) as it then read. New York amended its lawyer-advertising and firm-name rules, including Rule 7.5(b), effective June 24, 2020. The amended rule relaxed the categorical trade-name prohibition this opinion applied, permitting firm and trade names that are not false, deceptive, or misleading. Treat the holding here as historical; for the current treatment of firm and trade names, see NYSBA Opinion 1207 and later opinions. The portion of this opinion noting that a lawyer may truthfully state that the firm is known elsewhere by another name, and the deferral of the Judiciary Law § 478 question, are unaffected by the rule change.

Common questions

Q: Could a New York branch of an out-of-state firm use the firm's home-state trade name in New York?

A: Per the opinion as decided, no. Rule 7.5(b) as then written barred practicing under a trade name in New York even where the firm's home state permits the name. New York later amended Rule 7.5(b) effective June 24, 2020, so verify the current rule.

Q: Did the bar leave the firm any use of its trade name?

A: Per the opinion, yes. The committee said the lawyer could truthfully state in advertising and branding that the New York firm is elsewhere known by the trade name, so the prohibition did not entirely deprive the firm of the name's goodwill.

Q: Did the committee decide whether non-New York lawyers could open a New York office?

A: No. The committee declined, treating that as a question of unlawful practice under Judiciary Law § 478, which is a question of law outside its jurisdiction.

Background and rules framework

The opinion interpreted New York Rule 7.5(b) (firm names and the prohibition on trade names) as it stood before the June 24, 2020 amendments, corresponding to the firm-name provisions formerly in ABA Model Rule 7.5. It declined to reach the Judiciary Law § 478 unauthorized-practice question as a matter of law.

Citations and references

Rules of Professional Conduct:

• New York Rule of Professional Conduct 7.5(b) (as in effect before the June 24, 2020 amendments)
• ABA Model Rule 7.5 (former firm-name analogue)

Statutes (referenced, not decided by the committee):

• New York Judiciary Law § 478 (unauthorized practice)

Other opinions cited:

• N.Y. State 740 (2001); 861 (2011); 869 (2011); 1023 (2014); 1152 (2018); 1168 (2019): the scope of the trade-name prohibition and out-of-state trade names

See also

• NY State Bar Op. 1193: New York Trade-Name Bar for an Out-of-State Firm
• NY State Bar Op. 1207: Law Firm Trade Names After the Rule 7.5 Amendment
• NY State Bar Op. 1184: Freelance or Per Diem Attorney Name, Marketing, and Recordkeeping

Source

• Landing page: https://nysba.org/ethics-opinion-1179/