Can an out-of-state law partnership run a Texas office under the same firm name, and what conditions apply?

Plain-English summary

The inquiry asked under what guidelines a law firm, particularly a partnership organized in another state and made up of lawyers licensed in different states, may maintain a Texas office under the same firm name. The Committee answered by setting out the conditions for doing so.

Starting from DR 2-102(D), which allows a partnership of lawyers licensed in different jurisdictions to use the same firm name in each jurisdiction so long as all listings make clear the jurisdictional limitations of members not licensed everywhere, the Committee reaffirmed its earlier reasoning in Opinion 319 that such a firm may keep offices under one name in several states if there is a resident partner licensed in each state and all representations make clear where the firm's members are licensed. It treated the scope of the firm's practice as immaterial while cautioning against the unauthorized practice of law by attorneys not licensed in each state. The Committee disagreed with ABA Informal Decision C-702, which had called it improper to use a partnership name including partners not licensed in the state, as overly broad and not required by the Code, and it adhered to the six conditions in ABA Informal Opinion 1355 for multi-office interstate practice.

The Committee held that an out-of-state partnership may operate a Texas office under the same firm name, provided it maintains a resident Texas-licensed partner and a resident agent for service of process, and provided its letterheads, listings, and other representations make clear which members and associates are not licensed in Texas. It added that, under the State Bar Act, any lawyer not licensed in Texas is treated as a "non-lawyer" unless otherwise sanctioned, so such a firm must follow DR 3-101 against aiding the unauthorized practice of law.

Currency note

This opinion was issued in 1981, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework; the rules on multijurisdictional practice have developed considerably since 1981. The closest current provisions are Texas Rule 7.01 (firm names and letterhead) and Rule 5.05 (unauthorized practice of law), with ABA analogs Model Rules 7.1 and 5.5. Subsequent rule changes or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a multistate firm use the same name at its Texas office?

A: Per the opinion, yes. The Committee held that an out-of-state partnership may operate a Texas office under the same firm name, consistent with DR 2-102(D), if it meets the resident-partner, resident-agent, and disclosure conditions.

Q: What must the Texas office have in place?

A: A resident partner licensed in Texas and a resident agent for service of process, plus letterheads and listings that make clear which members and associates are not licensed to practice in Texas.

Q: How does the opinion treat firm lawyers not licensed in Texas?

A: As "non-lawyers" for purposes of the State Bar Act unless otherwise sanctioned, so the firm must follow DR 3-101 and avoid aiding the unauthorized practice of law.

Background and rules framework

The opinion interprets DR 2-102(D) (same firm name across jurisdictions with clear disclosure of licensing limitations) and DR 3-101 (not aiding the unauthorized practice of law) of the former Texas Code of Professional Responsibility, drawing on EC 2-11, former Texas Canon 30, the State Bar Act, and prior Opinions 319 and 227. The closest current provisions are Texas Rule 7.01 and Rule 5.05, with ABA analogs Model Rules 7.1 and 5.5. The analysis turns on a resident Texas partner and clear public disclosure of who is licensed where.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications and firm names); MR 5.5 (unauthorized and multijurisdictional practice), as the modern analogs
• DR 2-102(D), DR 3-101, EC 2-11, former Texas Canon 30 (former Texas Code of Professional Responsibility)

Statutes:

• State Bar Act, Tex. Rev. Civ. Stat. Ann. art. 320a-1, Section 10(a) (non-members prohibited from practicing law except as the Supreme Court permits)

Other opinions cited:

• Tex. Comm. on Professional Ethics, Op. 319 (1966), 23 Baylor L. Rev. 845: same firm name across states with a resident partner in each
• Tex. Comm. on Professional Ethics, Op. 227 (1959), 18 Baylor L. Rev. 308
• ABA Informal Opinion 1355: six conditions for multi-office interstate practice
• ABA Informal Opinion 938; ABA Informal Decision C-702 (disagreed with)

See also

• TX Ethics Op. 407: Foreign Law Firm's Texas Office Advising Only on Foreign Law
• TX Ethics Op. 406: Credentials on a Lawyer's Letterhead and Professional Card
• TX Ethics Op. 402: The "Of Counsel" Designation on a Firm's Letterhead

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-400/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_400.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. The section symbol, which did not render in the source HTML, is restored as the word "Section."

QUESTION PRESENTED

Under what guidelines may a law firm, and in particular a legal partnership organized in another state and comprised of lawyers licensed in different states, maintain an office under the same firm names within the State of Texas?

DISCUSSION

As pertinent herein, DR 2-102(D) provides as follows: A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.

In a previous opinion, the Professional Ethics Committee determined that a law firm composed of lawyers licensed in different states may maintain offices under the same firm name in several states provided that (1) there is a resident partner licensed in each state where an office is maintained, and (2) all representations of the firm name to the public make clear those states in which the members of the firm are licensed to practice. Under that previous opinion, the Professional Ethics Committee determined that the scope of the firm's practice is immaterial, but that caution must be exercised to avoid the unauthorized practice of law by attorneys not licensed in each state. See Opinion 319 (October, 1966), 23 Baylor L.Rev. 845.

In rendering its decision, the Committee relied upon former Texas Canon 30, which provided that: "In the formation of partnerships for the practice of law, no person shall be admitted who is not a member of the legal profession, duly authorized to practice and amenable to professional discipline. No personal shall be held out as a practitioner or member who is not so admitted. In the selection and use of a firm name, no false, misleading, assumed or trade name shall be used."

The Professional Ethics Committee has examined the reasoning behind Opinion 319 and is of the opinion that the basic tenets set forth therein remain applicable under the guidelines of DR 2-102(D). Moreover, as pointed out in EC 2-11, the name under which a lawyer conducts his or her practice may be a factor in the client's selection process, and the Committee disagrees with ABA Informal Decision C-702 (February 24, 1964), in which it was held "that it would be improper to maintain an office in a state under a partnership name which includes the names of partners not licensed to practice in that state." Such a qualification is overly broad and contrary to long-standing practice, and is not required under the Code of Professional Responsibility. See DR 2- 102(D).

Therefore, the Committee holds that it is permissible for an out-of-state legal partnership to operate a Texas office under the same firm name, provided that the firm maintains a resident Texas licensed partner, and provided that the letterheads, listings, and all other representations of the firm make it clear which members and associates of the firm are not licensed to practice law in Texas. See Opinions 319 (October, 1966) 23 Baylor L.Rev. 845; Opinion 227 (March, 1959), 18 Baylor L.Rev. 308; ABA Informal Opinion 938 (May 7, 1966).

It should be noted that ABA Informal Opinion 1355 permits the multi-office interstate practice of law provided that the following six conditions are satisfied: (1) "so long as the limitations of each lawyer with respect to practice are indicated clearly to all clients and to the public;" (2) "only lawyers share in any divisions of fees and any sharing is based on the division of services or responsibilities;" (3) "the public must be apprised of the exact nature of affiliation;" (4) "each lawyer involved must carefully avoid any deception or misrepresentation;" (5) "the affiliation between the various practices should be the normal type of partnership or professional corporation which is customary in the jurisdiction involved;" and (6) "the letterhead should conform to ABA Model Code of Professional Responsibility DR 2-102(D)."

The Professional Ethics Committee of the State Bar of Texas agrees with and adheres to the guidelines set forth in ABA Informal Opinion 1355. Nonetheless, it is the opinion of the Professional Ethics Committee that it is the responsibility of the State Bar of Texas to insure that attorneys who practice law in this state be governed by the same standards and be amenable to the same disciplinary procedures of the Texas Code of Professional Responsibility as are resident attorneys. It would be detrimental to both the Bar and the lay public for out-of-state attorneys who may not be subject to the guidelines established for resident attorneys to be allowed to practice law in this forum.

Therefore, in order for an out-of-state partnership to practice law within the State of Texas, the partnership should have a resident agent for service of process, and must have a resident partner who is licensed to practice law in the State of Texas. The requirements will insure the same degree of commitment and obligation to the citizens of Texas on the part of an interstate law firm that is demanded of resident practitioners, and accordingly, will offer the public a protection which it might not otherwise have, to wit, an accountability to the general public by such firms. Moreover, the Professional Ethics Committee concludes that having a resident partner will assist in avoiding confusion and misleading of the general public and thus will aid in maintaining the integrity of the State Bar and in upholding the highest ideals of the Code of Professional Responsibility.

As a caveat, the Professional Ethics Committee does not intend for this Opinion to limit in any way the applicability or consideration of the State Bar Act, Tex. Rev. Civ. Stat. Ann. art. 320a-1, Section 10(a), which provides in pertinent part, as follows: All persons not members of the State Bar are prohibited from practicing law in this state except that the Supreme Court may promulgate rules and regulations prescribing the procedures for limited practice of law by attorneys licensed in another jurisdiction, . . .

In accordance with the State Bar Act, it is the opinion of the Professional Ethics Committee that any lawyer not licensed to practice law in the State of Texas is a "non-lawyer" unless otherwise sanctioned in accordance with the applicable rules promulgated by the Supreme Court of the State of Texas. Therefore, an out-of-state partnership which maintains an office in Texas with a resident Texas partner should be apprised of and follow the guidelines of DR 3-101, which provides as follows: (A) A lawyer shall not aid a non-lawyer in the unauthorized practice of law. (B) A lawyer shall not practice law in a jurisdiction where to do so would be in violation of regulation of the profession in that jurisdiction.

Tex. Comm. On Professional Ethics, Op. 400 (1981)