Can a New York lawyer market freelance or per diem services to other lawyers under the name 'Surname Esquire,' and must the lawyer keep a separate bank account and other records?

NYSBA Ethics Opinion 1184: Freelance or Per Diem Attorney Name, Marketing, and Recordkeeping

Short answer: The opinion concludes that a New York lawyer may market freelance or per diem services to other lawyers using the lawyer's surname plus "Esquire"; marketing aimed solely at lawyers is not attorney advertising; and a freelance lawyer who holds no one else's funds needs no separate trust account but must still keep the records Rule 1.15(d) requires and comply with the conflict-checking and other Rules.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's view of New York's 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

A New York lawyer wanted to perform per diem or contract ("freelance") work for other lawyers and firms without forming a law firm, marketing through a website at "[Surname]Esquire.com" and a LinkedIn profile describing the lawyer as a "Freelance Attorney" at "[Surname] Esquire," directed only at other lawyers. The lawyer asked whether this is permissible, whether a separate bank account is required, and what other ethical restrictions apply.

On the name and marketing, the opinion notes that even a sole proprietorship is a "law firm" under Rule 1.0(h). Rule 7.5(b) barred practicing under a trade name or a misleading firm name, but the committee's precedents establish that a lawyer's own surname is a permissible firm name, so "[Surname] Esquire" is fine, and using "Esquire" or "Esq." to indicate one is a lawyer is not a misleading trade name (citing N.Y. State 1147, 1089, 1152, 1167, 1003, 869). Because the marketing is aimed solely at other lawyers, it is not "advertising" under Rule 1.0(a) and is outside Rule 7.1's content rules (though a disclaimer may be needed if public media make that audience limitation unclear). The general bar on dishonesty and misrepresentation (Comment [6] to Rule 7.1; Rule 8.4(c)) still applies, so "freelance attorney" is permissible if accurate, and Rule 7.4 lets the lawyer identify the limited nature of the practice.

On bank accounts, whether a separate account is required depends on whether the lawyer comes to hold funds in which others have an interest. If the lawyer does, Rule 1.15(a)-(c) applies, including a separate New York trust account. Typically, though, per diem lawyers are paid directly by the hiring lawyer or firm for their services, and that money belongs to the lawyer alone (the functional equivalent of a salary), so no trust account is needed. But the committee reads Rule 1.15(d) literally: a lawyer must keep, for seven years, records of any bank account that "concerns or affects" the lawyer's practice of law, so even depositing fees into a personal account does not excuse the recordkeeping requirement.

On other duties, the opinion (drawing on N.Y. State 1113 (2017)) lists obligations that still apply: competence (1.1), diligence and punctuality (1.3), keeping the client informed through the hiring lawyer (1.4(a)(3)), confidentiality (1.6), conflict checking and avoidance (1.7, 1.8, 1.9, 1.10(e)), candor and fairness to adversaries (4.1, 4.2), and compliance with court rules and local practice (3.3(f)(1)). Both the hiring firm and the per diem lawyer must keep written engagement records and run conflict checks, and a per diem lawyer who handled a matter cannot later appear for the other side in the same or a substantially related matter.

In practice

Under this opinion, a New York lawyer offering per diem or contract work to other lawyers may operate under "[Surname] Esquire" as a website and firm name, and marketing aimed only at lawyers falls outside Rule 7.1's advertising-content rules (subject to the general honesty requirement and a possible audience-clarifying disclaimer on public media). The opinion holds that a freelance lawyer who never holds funds belonging to others is not required to maintain a separate trust account, but must keep the Rule 1.15(d) records for any account that concerns or affects the law practice for seven years, and must satisfy the competence, confidentiality, conflict-checking (including the Rule 1.10(e) written engagement records), candor, and court-rule obligations that apply to any lawyer.

Note on currency: the opinion interprets Rule 7.5(b) as it read before New York amended its lawyer-advertising rules (Rules 7.1 to 7.5) effective June 24, 2020; the amended 7.5(b) relaxed the trade-name prohibition. The surname-name holding here does not depend on the prohibition the amendment relaxed. See NYSBA Op. 1207 (law firm trade names after the Rule 7.5 amendment) for the post-amendment treatment.

Common questions

Q: Can a per diem lawyer practice under "Surname Esquire" and a matching domain name?

A: Per the opinion, yes. A lawyer's surname is a permissible firm name, and "Esquire" or "Esq." used by a practicing New York lawyer is not a misleading trade name, so "[Surname] Esquire" may be used as the firm name and domain.

Q: Is marketing per diem services to other lawyers attorney advertising?

A: Per the opinion, no. Rule 1.0(a) excludes communications to other lawyers from the definition of "advertisement," so such marketing is outside Rule 7.1's content rules, though the general bar on dishonesty and misrepresentation still applies and a disclaimer may be needed if public media obscure the lawyer-only audience.

Q: Does a freelance lawyer need a separate trust account?

A: Per the opinion, only if the lawyer comes to hold funds in which others have an interest. A per diem lawyer paid directly for services holds that money as the lawyer's own and needs no trust account.

Q: If no trust account is needed, are there still recordkeeping duties?

A: Yes. Per the opinion, Rule 1.15(d) requires keeping, for seven years, records of any bank account that concerns or affects the law practice, even a personal account into which the lawyer deposits fees.

Background and rules framework

The opinion interprets New York Rule 7.5(b) (firm names and trade names, in its pre-June-2020 form), Rule 7.1 and Rule 1.0(a) (what counts as advertising and the lawyer-communication exclusion), Rule 7.4 (identifying practice areas), Rule 1.15 (trust accounts under 1.15(a)-(c) and recordkeeping under 1.15(d)), and Rule 1.10(e) (engagement records for conflict checking), along with the competence, diligence, confidentiality, conflicts, and candor rules. These correspond to ABA Model Rules 7.1, 7.5, 7.4, 1.15, and 1.10.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 1.0(a), 1.0(h); 7.1 (Comments [6], [7]), 7.4, 7.5(b); 1.15(a), 1.15(b), 1.15(c), 1.15(d); 1.1, 1.3, 1.4(a)(3), 1.6, 1.7, 1.8, 1.9, 1.10(e); 3.3(f)(1); 4.1, 4.2; 8.4(c)
• ABA Model Rules 7.1, 7.5, 7.4, 1.15, 1.10 (analogues)

Other opinions cited:

• N.Y. State 869 (2011); 1003 (2014); 1089 (2016); 1147 (2018); 1152 (2018); 1167 (2019): surname firm names and use of "Esquire"
• N.Y. State 715 (1999); 1113 (2017): duties of per diem and contract lawyers, conflict checking
• N.Y. City 1994-5; 1988-3/3-A; 1989-2; 1996-8; ABA 88-356 (1988): per diem lawyer duties

See also

• NY State Bar Op. 1207: Law Firm Trade Names After the Rule 7.5 Amendment
• NY State Bar Op. 1193: New York Trade-Name Bar for an Out-of-State Firm
• NY State Bar Op. 1188: Estate Funds Held Solely as Co-Executor in an Attorney Trust Account

Source

• Landing page: https://nysba.org/ethics-opinion-1184/