Can three lawyers who share office overhead but are not partners call their practice 'Law Offices of A, B & C,' or 'A, B & C, An Association of Attorneys,' or designate each other 'Of Counsel'?

Currency note

Vacated. The Board of Professional Responsibility vacated Formal Ethics Opinion 84-F-64 on September 11, 2015 due to changes in the law or rules. Its "Not a Partnership" disclaimer requirement had already been vacated earlier, within the same year, by Formal Ethics Opinion 84-F-82 (October 17, 1984), which held that "An Association of Attorneys" alone was a proper way to identify a non-partnership firm's members and that the public is not in fact better informed by an added "Not a Partnership" phrase. This opinion was also issued in 1984, before Tennessee's adoption of the 2003 Rules of Professional Conduct, which replaced the former Code of Professional Responsibility. A vacated opinion has no continuing force and is not the Board's current guidance. It is reproduced and summarized here only as a historical research record. Do not rely on it as current; verify the current rules on firm names under RPC 7.5 before acting.

Plain-English summary

Two lawyers, A and B, who were partners, planned to rent office space to a third lawyer, C, who would also share a portion of utilities, library maintenance, copy-machine expenses, and other overhead. C would not be a member or associate of the firm of A and B, but the lawyers would occasionally associate one another on cases in their respective specialties. The inquiry asked what name the arrangement could properly use: "Law Offices of A, B & C," "A, B & C, An Association of Attorneys," or listing C as "Of Counsel" to the firm of A and B.

Quoting Disciplinary Rule 2-102(B)'s bar on practicing "under... a name that is misleading as to the identity of the lawyer or lawyers practicing under such name," and Formal Ethics Opinion 81-F-8's caution that affiliated firms must take care that the exact nature of the affiliation is known and that no confusion arises over who shares responsibility and liability, the opinion held that "Law Offices of A, B & C" was improper because it implies the three are partners sharing liability for each other's acts, while "based on the facts stated herein, it is obvious that the arrangement contemplated by A, B and C is not a partnership arrangement." It next considered "A, B & C, An Association of Attorneys," quoting ABA Formal Opinion 318's discussion of "and Associates" for the proposition that an associate "does not share responsibility with" the others, but found this name improper too on these facts, because "C will not be a member or associate of the firm of A and B." The opinion held that "the average client or the general public will not perceive such a term as meaning that no partnership exists," so "the term 'Not a Partnership' must be included in any arrangement where a partnership does not exist." Finally, quoting ABA Formal Opinion 330's definition of "Of Counsel" as "a close, continuing, personal relationship between an individual lawyer and a law firm or lawyer" that is not a partner, associate, or outside-consultant relationship, the opinion found "no impropriety" in C serving as "Of Counsel" to the firm of A and B, and vice versa.

Common questions

Q: Can non-partner lawyers who share office overhead use the name "Law Offices of A, B & C"?

A: No. The opinion found that name "implies that attorneys A, B and C are partners in the practice of law and that each partner is liable for the acts of the other," while the actual arrangement "is not a partnership arrangement."

Q: Is "A, B & C, An Association of Attorneys" a safe alternative by itself?

A: At the time, no. This opinion held "the average client or the general public will not perceive such a term as meaning that no partnership exists," requiring the added phrase "Not a Partnership." That requirement was vacated later the same year by Formal Ethics Opinion 84-F-82.

Q: Can the lawyers instead designate each other "Of Counsel"?

A: Yes. Quoting ABA Formal Opinion 330's definition of "Of Counsel" as a relationship that is "not that of a partner, associate, or outside consultant," the opinion found "no impropriety" in C being Of Counsel to the firm of A and B, and the firm being Of Counsel to C.

Background and rules framework

The opinion applied Disciplinary Rule 2-102(B) (no firm name misleading as to the identity of the lawyers practicing under it) and Formal Ethics Opinion 81-F-8's standard for affiliated-firm clarity, together with ABA Formal Opinion 318 (the term "and Associates") and ABA Formal Opinion 330 (the definition of "Of Counsel"). The modern correlate is Model Rule 7.5 (firm names and letterheads), cited here as a navigational cross-reference rather than a rule the opinion itself applied; this opinion has since been vacated, so current RPC 7.5 controls.

Citations and references

Other opinions cited:

• Tennessee Formal Ethics Opinion 81-F-8, clarity required in affiliated-firm names and letterheads
• ABA Formal Opinion 318, the term "and Associates" in a firm name
• ABA Formal Opinion 330, definition of the "Of Counsel" relationship

See also

• Tennessee Op. 81-F-8: Intrastate Affiliation of Two Law Firms
• Tennessee Op. 84-F-82: Law Firm Name "An Association of Attorneys"

Source

• Landing page: https://www.tbpr.org/ethic_opinions/84-f-64

Original opinion text

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

84-F-64 - Vacated*

*Vacated by the Board of Professional Responsibility on September 11, 2015 due to changes in the law or rules.

FORMAL ETHICS OPINION 84-F-64

Inquiry is made as to the ethical propriety of using the firm name "Law Offices of A, B & C"; or, the firm name "A, B & C, An Association of Attorneys"; or, listing C as "Of Counsel" to the firm of A and B.

A and B are partners in the practice of law and intend to rent office space to attorney C. C will also share in paying a portion of the utilities, library maintenance, copy machine expenses and other overhead expenses. C will not be a member or associate of the firm of A and B but, from time to time, will be associated by A and B in certain cases in which C specializes. Likewise, from time to time, A and B will be associated by C in certain cases in which A and B specializes. Inquiry is made as to the appropriate name of the law firm.

Disciplinary Rule 2-102(B) of the Code of Professional Responsibility states, in part:

A lawyer ... shall not practice under ... a name that is misleading as to the identity of the lawyer or lawyers practicing under such name.

Formal Ethics Opinion 81-F-8, in holding that there is no impropriety in forming an intrastate affiliation of a professional corporation and a professional association whereby one attorney is a member of both firms, stated that careful attention and special care should be taken to insure that the exact nature of the affiliation is known to the clients of each firm and to the public. The opinion further stated that there should be no confusion created in the use of letterheads, shingles and listings as to the individuals who share in the responsibility and liability for the acts of each firm.

The firm name of "Law Offices of A, B & C" implies that attorneys A, B and C are partners in the practice of law and that each partner is liable for the acts of the other. A partnership is defined by Black's Law Dictionary, Fifth Edition, at page 1009, as:

A voluntary contract between two or more competent persons to place their money, efforts, labor and skill, or some or all of them, in lawful commerce or business, with the understanding that there shall be a proportional sharing of the profits and losses between them.

Based on the facts stated herein, it is obvious that the arrangement contemplated by A, B and C is not a partnership arrangement. Therefore, it is improper for them to use the firm name "Law Offices of A, B & C".

The firm name "A, B & C, An Association of Attorneys" implies that attorneys A, B and C are not partners. American Bar Association Formal Opinion 318 discusses the use of the term "and Associates" and at page 14 states:

If an associate is one who is not a partner, then this would be a proper designation for one who is associated with another or others in the practice of law but does not share responsibility with him or them.

The facts submitted in this inquiry state:

C will not be a member or associate of the firm of A and B ....

Therefore, it is obvious that the arrangement contemplated by A, B and C is not an association. Therefore, it is improper for them to use the firm name "A, B & C, An Association of Attorneys".

It is recognized that the term "An Association of Attorneys" is not the only appropriate disclaimer to use in designating that the arrangement is, in fact, not a partnership. The average

client or the general public will not perceive such a term as meaning that no partnership exists. An additional disclaimer is necessary and, therefore, the term "Not a Partnership" must be included in any arrangement where a partnership does not exist.

The use of such a disclaimer is necessary not only to indicate to the public the limited liability of the individual members of the association, but also to indicate to the legal community the exact nature of the association.

ABA Formal Opinion 330 defines the term "Of Counsel" as follows:

The relationship indicated by the term 'Of Counsel' is a close, continuing, personal relationship between an individual lawyer and a law firm or lawyer, and the relationship is one that is not that of a partner, associate, or outside consultant.

It appears that the arrangement contemplated by the attorneys in this instance is that attorney C will serve in an "Of Counsel" relationship to the law firm of A and B; and, that the law firm of A and B will serve in an "Of Counsel" relationship to Attorney C. There is no impropriety in such an arrangement.

This 18th day of January, 1984.

ETHICS COMMITTEE:

O. B. Hofstetter, Jr.

F. Evans Harvill

William R. Willis

APPROVED AND ADOPTED BY THE BOARD