Can a solo lawyer who only does lobbying name his firm 'John Doe and Associates' and list nonlawyer employees on the letterhead?

Plain-English summary

A lawyer engaged solely in governmental affairs and lobbying planned to open a firm of himself and two nonlawyer employees, naming it "John Doe and Associates, P.A." The letterhead would read "Public and Governmental Affairs" below the name and would list the two nonlawyer employees, separated from the lawyer by an asterisk keyed to a note reading "Denotes employees who are not attorneys." The lawyer asked whether the name and the letterhead were acceptable.

On the name, the committee concluded the answer is no. Rule 1.0(d) defines a "firm" as lawyers associated with an enterprise who represent clients within the scope of that association, so the fact that the lawyer is not providing traditional legal services does not take him outside the Rules of Professional Conduct; the committee also pointed to Rules 5.7 and 8.5(c). Rule 7.5(a) bars a firm name, letterhead, or designation that violates Rule 7.1, and Rule 7.1 bars false, misleading, deceptive, or unfair communications. The committee concluded "John Doe and Associates, P.A." is misleading, and so violates Rules 7.5(a) and 7.1, because it implies more than one lawyer when there is only one, citing In re Mitchell. It added that Rule 7.5(d) (lawyers may state or imply they practice in a partnership or other organization only when that is the fact) was arguably violated as well.

On the letterhead, the committee concluded it is acceptable provided the name is changed to delete "and Associates." Rule 7.5 does not prohibit letterhead references to nonlawyer employees, but if such references are misleading, Rules 7.5(a) and 7.1 are violated. Subject to deleting "and Associates," the proposed letterhead is acceptable as long as the delineation of the nonlawyer employees is clear and not misleading.

In practice

Under this opinion, on the facts presented, a single-lawyer firm cannot use "and Associates" in its name under the South Carolina rules as they stood at the time, because the plural implies more than one lawyer and is misleading under Rules 7.5(a) and 7.1. The committee held that a lawyer doing only lobbying or governmental affairs is still within the Rules under the Rule 1.0(d) definition of a firm. It found the proposed letterhead acceptable once "and Associates" is removed and the nonlawyer employees are clearly identified as nonlawyers.

Common questions

Q: Can a solo lawyer name the firm "[Name] and Associates"?

A: The committee concluded no; with only one lawyer, "and Associates" implies more than one lawyer and is misleading, violating Rules 7.5(a) and 7.1.

Q: Does it matter that the lawyer only does lobbying, not traditional legal work?

A: No. The committee applied the Rule 1.0(d) definition of a firm and noted Rules 5.7 and 8.5(c), concluding the lawyer remains subject to the Rules of Professional Conduct.

Q: Can nonlawyer employees be listed on the firm letterhead?

A: Yes. The committee stated Rule 7.5 does not prohibit listing nonlawyer employees, provided the listing clearly delineates them as nonlawyers and is not otherwise misleading.

Background and rules framework

The opinion applies South Carolina's versions of Model Rule 1.0 (the Rule 1.0(d) definition of "firm"), Rule 5.7 (responsibilities regarding law-related services), Rule 7.1 (communications concerning a lawyer's services), Rule 7.5 (firm names and letterheads), and Rule 8.5(c) (disciplinary authority). The analysis turns on whether the name and letterhead are misleading under Rule 7.1, applied through Rule 7.5(a).

Citations and references

Rules of Professional Conduct:

• MR 1.0(d) / SC Rule 1.0(d) (definition of "firm")
• MR 5.7 / SC Rule 5.7 (law-related services)
• MR 7.1 / SC Rule 7.1 (false or misleading communications about a lawyer's services)
• MR 7.5 / SC Rule 7.5(a), 7.5(d) (firm names and letterheads)
• MR 8.5 / SC Rule 8.5(c) (disciplinary authority)

Cases:

• In re Mitchell, 364 S.C. 606, 614 S.E.2d 634 (2005), misleading firm name implying more than one lawyer

See also

• SC Bar Ethics Op. 05-10: Advertising a lawyer-owned title business
• SC Bar Ethics Op. 04-06: Descriptive website URLs
• SC Bar Ethics Op. 04-09: Out-of-state lawyer business cards

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-05-19/

Original opinion text

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

UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 05-19

RULES 1.0(d), 5.7, 7.1, 7.5, and 8.5(c)

Facts
An attorney, who is engaged solely in the practice of governmental affairs and lobbying, decides to open a governmental / lobbying firm. The firm consists of the attorney and two non-attorney employees. He wishes to name the firm “John Doe and Associates, P.A.” This name is supposed to appear on firm letterhead and other firm materials. Below the name of the firm, the letterhead also reads “Public and Governmental Affairs.” Nothing in the letterhead, or any other materials, denotes that the firm is engaged in any type of legal work other than lobbying and governmental affairs.

The firm wishes to place the names of the two non-attorney employees on the firm’s letterhead. It is proposed that the names will be separated from the name of the attorney and an asterisk will be placed beside the names of the two non-attorney employees. At the bottom of the letterhead, a note will read as follows: “Denotes employees who are not attorneys.”

Questions:
Is the use of the name “John Doe and Associates, P.A.” acceptable?
Is this letterhead acceptable?

Summary – Question # 1
No. If John Doe is practicing law or holding himself out as an attorney, under the facts described above, the use of the name “John Doe and Associates, P.A.” would be misleading and hence, violative of Rule 7.5(a) since there is only one attorney in the firm. Also, John Doe would be advised to consider Rules 5.7 and 8.5(c), which may be applicable to the facts above.

Summary – Question # 2
Yes, provided that the name of the firm is changed to delete “and Associates,” the letterhead would be acceptable, as long as it clearly delineates the non-lawyer employees as such.

Opinion – Question # 1
As defined in Rule 1.0(d), “Firm” or “Law Firm” denotes “… lawyers associated with an enterprise who represent clients within the scope of that association.” Hence, the fact that the lawyer may not be providing traditional legal services does not take him outside the scope of the Rules of Professional Conduct. See also Rules 5.7 and 8.5(c).

Rule 7.5(a) reads “A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.” Rule 7.1 reads, in relevant part, “A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyer’s services.” The use of the name “John Doe and Associates, P.A.” is misleading (and therefore violates Rules 7.5(a) and 7.1) because it implies that there is more than one lawyer in the firm, when, in fact, there is only one. See In re Mitchell, 364 S.C. 606, 614 S.E.2d 634 (2005). Arguably, a violation of Rule 7.5(d) also exists, “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”

Opinion – Question # 2
Rule 7.5 does not prohibit letterhead references to non-attorney employees; however, if such references are misleading, then a violation of both Rule 7.5(a) and Rule 7.1 ensues. Subject to the foregoing opinion as to Question 1, requiring the name of the firm to be changed to delete “and Associates,” the letterhead described above would be acceptable as long as the delineation of non-attorney employees is clear and not misleading.