Can Ohio lawyers practice under a common trade name licensed through a nationwide law-firm franchise?

Plain-English summary

The Board considered a franchise arrangement in which a common trade name and logo for the practice of law would be licensed to attorneys nationwide to create a "nationwide network of franchised law firms," with franchisees paying a one-time fee plus monthly fees for marketing and other services. The Board answered the inquiry "resolutely no" on three independent grounds.

First, the use of a trade name is prohibited under DR 2-102(B). Second, a nationwide network of franchisees practicing under a common trade name holds out a partnership of lawyers where none exists, contrary to DR 2-102(C). Third, under DR 3-103(A), a lawyer may not form a partnership with a non-lawyer where the activities consist of the practice of law; if the franchiser were a non-lawyer, the arrangement would violate that rule, and even if the franchiser were a lawyer or law firm, the DR 2-102(B) and (C) violations would remain.

The Board noted other states reaching similar results (Utah, Illinois, Michigan) and addressed ABA Formal Op. 94-388 on firm-name licensing, but declined to rely on the ABA opinion because it interpreted Model Rules not adopted in Ohio and was not directly on point. The Board added that it was not condemning permissible group advertising.

Currency note

The Ohio Board flags this opinion as a "CPR Opinion" interpreting the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. The opinion header also notes it was withdrawn by Advisory Opinion 2021-10.

This opinion issued in 1997, before those changes. Subsequent rule amendments and the Board's withdrawal may have changed the analysis; current Ohio rules permit some trade names that the former Code prohibited. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Could Ohio lawyers join a national law-firm franchise using a shared brand name?

A: No. The opinion concluded that practicing under a common franchised trade name was improper under DR 2-102(B), 2-102(C), and 3-103(A).

Q: Did it matter whether the franchiser was a lawyer or a non-lawyer?

A: Partly. The opinion concluded that a non-lawyer franchiser would add a DR 3-103(A) violation, but even a lawyer franchiser would leave the trade-name and false-partnership violations under DR 2-102(B) and (C).

Q: Did the opinion prohibit group advertising by lawyers?

A: No. The opinion stated it was not a statement against group advertising, which is permitted within certain ethical boundaries.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility: DR 2-102(B) (no practice under a trade name or misleading firm name), DR 2-102(C) (no holding out a partnership that does not exist), and DR 3-103(A) (no partnership with a non-lawyer where the activities are the practice of law).

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 2-102(B), DR 2-102(C), DR 3-103(A)

Other opinions cited:

• ABA Formal Op. 94-388 (firm-name licensing); Utah State Bar Op. 95-04; Illinois State Bar Op. 96-04; State Bar of Michigan Op. RI-130; Ohio BPC Ops. 89-30, 91-7, 92-3 (group advertising)

See also

• Ohio BPC Op. 1997-002: Retired Attorney 'Of Counsel' to Two Firms

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-97-001.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

                                         OFFICE OF SECRETARY


                                    OPINION 97-1
                               Issued February 14, 1997
                             Withdrawn by Adv. Op. 2021-10

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: It is improper under DR 2-102(B), 2-102(C), and 3-103(A) for attorneys to
practice law in Ohio under a common trade name franchised to attorneys across the
nation.

OPINION: This opinion addresses attorney participation in a “nationwide network of
franchised law firms” using a common trade name and logo for the practice of law.

    Is it proper for attorneys to practice law in Ohio under a common trade
    name franchised to attorneys across the nation?

“In its simplest terms, a franchise is a license from owner of a trademark or trade name
permitting another to sell a product or service under that name or mark.” Black’s Law
Dictionary 592 (5th ed. 1979). Although franchise agreements may vary in particularity,
the essential element is the use of a common trade name.

Under the franchise agreement presented to this Board, a common trade name for the
practice of law is franchised to attorneys across the nation to create a “nationwide
network of franchised law firms.” Each franchisee pays a one-time franchise fee for use
of the trade name and logo and monthly fees for advertising and other services. The
monthly fee is based upon the number of attorneys in the firm. The franchiser provides
marketing, advertising, and other services for the franchisee. The franchiser’s literature
claims that the franchise program “will do for the legal market what Century 21 did for
real estate.” The franchisee purportedly benefits by having a law office with the
“strongest brand image in the legal field,” “ancillary benefits and programs relating to
legal issues, technology and law office management,” “mass purchasing power,” and a
“system wide referral network.”

The answer to the inquiry is resolutely “no.” First, the use of trade names is prohibited
under DR 2-102(B) of the Ohio Code of Professional Responsibility. Second, a
nationwide network of attorney franchisees practicing law under a common trade name is
a holding out to the public that implies a partnership of lawyers where none exists and is
prohibited under DR 2-102(C). Third, under DR 3-103(A) a partnership may not be
formed with a non-lawyer if the activities consist of the practice of law. A lawyer who
enters a franchise agreement with a non-lawyer would be involved in a business
relationship with a non-lawyer where the activities consist of the practice of law in

violation of DR 3-103(A). If the franchiser is a lawyer or law firm, there would be no
violation of DR 3-103(A), but there still would be violations of DR 2-102(B) and DR 2-
102(C).

The rules are set forth below.

   DR 2-102(B) A lawyer in private practice shall not practice under a trade
   name, a name that is misleading as to the identity of the lawyer or lawyers
   practicing under the name, or a firm name containing names other than
   those of one or more of the lawyers in the firm, [exceptions not pertinent
   to this opinion].

   DR 2-102(C) A lawyer shall not hold himself or herself out as having a
   partnership with one or more other lawyers or professional corporations
   unless they are in fact partners.

   DR 3-103 (A) A lawyer shall not form a partnership with a non-lawyer if
   any of the activities of the partnership consist of the practice of law.

There may be other applicable disciplinary rules depending upon the particularities of a
specific franchise agreement, but these speculative concerns are not addressed further in
this opinion other than to state a few examples. There could be ethical concerns
regarding referral, conflict of interest, and fee division rules. In addition, there could be
concerns regarding advertising rules. However, this opinion is not to be interpreted as a
statement against group advertising by attorneys. Group advertising is permitted within
certain ethical boundaries. See Ohio SupCt, Bd. of Comm’rs on Griev and Disc, Op. 89-
30, Op. 91-7, and Op. 92-3.

Outside Ohio, there are several ethics committees that have not approved the practice of
law under a franchised trade name. In Utah, “a franchise arrangement in which a lawyer
or firm is provided with a trade name, marketing and related services . . . is inherently
misleading because it implies to potential clients a partnership or professional
corporation.” Utah State Bar. Op. 95-04 (1995). In Illinois, “[t]he Rules of Professional
Conduct are violated in numerous particulars by the creation of a network of independent
licensee lawyers to be held out as practicing in the name of a corporation wholly owned
by a non-lawyer.” Illinois Sate Bar Ass’n, Op. 96-04 (1996). In Michigan, “[a] lawyer
may not offer or make an agreement to franchise a trade name under which a number of
lawyers who are not in fact in a partnership or professional corporation relationship with
the franchiser hold themselves out as practicing under one firm name.” State Bar of
Michigan, RI 130 (1992).

The American Bar Association addressed the licensing of a firm name in the context of a
law firm seeking to create a national network of firms, all using the original firm’s name
under a licensing agreement. “If a law firm licenses its name to other firms, all firms so
licensed must, in fact, operate as a single firm and be treated as part of a single firm for
all purposes under the Model Rules.” ABA, Formal Op. 94-388 (1994). However, this
Board does not rely on the ABA opinion as guidance to Ohio lawyers on the issue raised

herein. The opinion is not directly on point. It broadly covers a variety of relationships,
interpreting the Model Rules that are not adopted in Ohio.

The franchise agreement before the Board would improperly involve Ohio attorneys in
the use of a trade name for the practice of law, the misrepresentation of a partnership
where no partnership exists, and might involve Ohio attorneys and non-lawyers in
relationships in which the activities consist of the practice of law. Thus, in conclusion,
this Board advises that it is improper under DR 2-102(B), 2-102(C), and 3-103(A) for
attorneys to practice law in Ohio under a common trade name franchised to attorneys
across the nation.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, nonbinding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.