Ezel / Ethics Opinions / NYSBA
NYSBA 2021-12-10

Can a solo practitioner use 'and Associates' in the firm name when the only other lawyers she works with are employed by other firms?

Short answer: No. The opinion concludes that 'associate' means a lawyer employed by the firm, so a sole practitioner with no employed lawyers may not call lawyers at other firms her 'associates' or use 'and Associates' in her firm name; doing so would be false and misleading under Rule 7.5(b).
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NYSBA Ethics Opinion 1233: "and Associates" in a Sole Practitioner's Firm Name

Short answer: The opinion concludes that a sole practitioner who employs no lawyers may not refer to lawyers at other firms with whom she works as her "associates," and may not include "and Associates" in her firm name to refer to those lawyers, because that would be false, deceptive, and misleading under Rule 7.5(b).

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

The inquirer is a sole practitioner who works with other law firms on all her matters but employs no lawyers of her own. She asks whether she may refer to the lawyers at those other firms as "associates" of her firm and whether she may add "and Associates" to her firm name on that basis.

The opinion applies Rule 7.5(b)(1)(iii), which bars practicing under a name that is misleading as to the identity of the lawyers practicing under it, and Comment [5], which says lawyers may not hold themselves out as counsel, associates, or affiliates of a firm when that is not a fact. The committee explains that "associate" has a recognized meaning in the profession: a salaried lawyer-employee of the firm who is not a partner or shareholder, citing N.Y. State 1137 ¶ 9 (2017) and N.Y. City 1996-8. A lawyer therefore may not call other lawyers "associates" unless they are actually her employees; that she works with them frequently or exclusively is not enough.

By the same reasoning, using "and Associates" when she has no associates would be false, deceptive, and misleading in two ways: it would imply her firm is larger and better-resourced than it is, and it would imply she has the capacity to supervise and direct junior lawyers when that power rests with their employers at the other firms. The opinion adds that she might be able to describe a sufficiently close relationship with other firms' lawyers as "associated" or "affiliated" in her marketing, but whether that crosses into false or misleading advertising under Rule 7.1(a) or deceit under Rule 8.4(c) is a fact-based question the committee could not resolve on the limited facts.

In practice

Under this opinion, a New York sole practitioner who employs no lawyers may not use "and Associates" in her firm name or label lawyers at other firms as her "associates," because "associate" means an employed lawyer and the usage would mislead as to the firm's size and supervisory capacity (Rule 7.5(b)). Per the opinion, describing other firms' lawyers as "associated" or "affiliated" is a separate, fact-specific question under Rules 7.1(a) and 8.4(c) that the committee did not decide.

Common questions

Q: Can a solo practitioner use "and Associates" in the firm name if she regularly works with lawyers at other firms?

A: No. Per the opinion, "and Associates" implies employed associate lawyers; using it when she has none is false, deceptive, and misleading under Rule 7.5(b).

Q: What does "associate" mean for firm-naming purposes?

A: Per the opinion, an "associate" is a salaried lawyer-employee of the firm who is not a partner or shareholder, citing N.Y. State 1137 and N.Y. City 1996-8.

Q: Can she describe those other lawyers as "associated" or "affiliated" with her firm?

A: The committee did not decide. Per the opinion, whether such a description is permissible turns on the actual relationship and is a fact-based inquiry under Rules 7.1(a) and 8.4(c).

Background and rules framework

The opinion interprets New York Rule 7.5(b)(1)(iii) (firm name not misleading as to the identity of the lawyers), with Comment [5], and references Rule 7.1(a) (false, deceptive, or misleading advertising) and Rule 8.4(c) (deceit and misrepresentation). These correspond to ABA Model Rules 7.5, 7.1, and 8.4.

Citations and references

Rules of Professional Conduct:

  • New York Rules of Professional Conduct 7.5(b)(1)(iii) and Cmt. [5], 7.1(a), 8.4(c)
  • ABA Model Rules 7.5, 7.1, 8.4 (analogues)

Other opinions cited:

  • N.Y. State 1137 ¶ 9 (2017): the meaning of "associate"
  • N.Y. City 1996-8: "associate" as a salaried lawyer-employee

See also

Source