Can a New York solo practitioner who employs a paralegal name the firm 'Smith and Associates'?

Plain-English summary

A solo practitioner who employs a paralegal wanted to name his firm "Smith and Associates," believing it would give a better impression of the firm's capabilities, and asked whether that complied with the Rules. The opinion answers no.

It applies Rule 7.5(b), which bars a private-practice lawyer from practicing under a trade name or a name misleading as to the identity of the lawyers practicing under it, and which forbids including a non-lawyer's name in a firm name. It also applies Rule 7.5(c), which bars lawyers from holding themselves out as partners when they are not, and Rule 8.4(c), which prohibits conduct involving dishonesty, fraud, deceit, or misrepresentation.

The opinion explains that because Smith is the only lawyer, "and Associates" could only refer to the paralegal, but "associate" has a long-established meaning in private practice as a lawyer who is employed by the firm and is not a partner. The name would give the false impression that Smith practices with other lawyer colleagues, and, read literally, suggests at least three lawyers (Smith and two others). The opinion draws support from N.Y. State 869 (2011) (firm names face more stringent requirements than general advertising) and reasons by negative inference from N.Y. State 732 (2000) and N.Y. State 286 (1973), which approved "group" or "and associates" names only where the firm in fact had lawyer associates.

In practice

Under this opinion, and under the New York rules as they stood at the time, a "[name] and Associates" firm name is permissible only where the firm actually employs lawyer associates. A solo practitioner whose only non-partner staff is a paralegal cannot use "and Associates," because the opinion treats the term as a representation that other lawyers practice at the firm.

Common questions

Q: Can a solo lawyer with a paralegal call the firm "[Name] and Associates"?

A: No. The opinion holds that "and Associates" implies the firm has lawyer associates, so a solo with no other lawyers using it would mislead the public, violating Rules 7.5(b), 7.5(c), and 8.4(c).

Q: Why isn't a paralegal an "associate" for this purpose?

A: The opinion explains that "associate" has a long-established meaning in private practice as a lawyer admitted to practice and employed by the firm but not a partner, so using it to refer to a paralegal is misleading.

Q: When is "and Associates" permissible?

A: When the firm actually has lawyer associates. The opinion reasons from N.Y. State 732 and N.Y. State 286, which approved such names where the associates were lawyers.

Background and rules framework

The opinion applies Rule 7.5 (Model Rule 7.5) on firm names and letterhead, specifically 7.5(b) (no trade name or misleading name; no non-lawyer name in the firm name) and 7.5(c) (no false holding-out as partners), together with Rule 8.4(c) (Model Rule 8.4) on dishonesty and misrepresentation. Comment [1] to Rule 7.5 directs lawyers to be scrupulous in representing professional status.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / NY 7.5(b), 7.5(c) (firm names; misleading names; holding out as partners)
• MR 8.4 / NY 8.4(c) (dishonesty, misrepresentation)

Other opinions cited:

• N.Y. State 869 (2011): firm names face more stringent requirements than general advertising
• N.Y. State 732 (2000): "group" in a firm name permissible where the lawyer practices with lawyer associates
• N.Y. State 286 (1973): "and associates" permissible where the associates are lawyers

See also

• NY State Bar Op. 936: Designating a departing partner as "Special Counsel" on letterhead
• NY State Bar Op. 1003: Firm name using middle initials and surname
• NY State Bar Op. 1028: Firm name, letterhead, and business card designations

Source

• Landing page: https://nysba.org/ethics-opinion-931/