Can a Utah law firm keep a founding partner's name in the firm name when that partner is a part-time state legislator who does very little legal work but has not formally retired?

Plain-English summary

Opinion 18-01 addresses a firm whose name lists, as its first-named partner, a founding partner who serves in Utah's part-time legislature, is old enough to retire but has not formally done so, and does very little legal work for clients. The question is whether the firm name may continue to include his name.

The Committee analyzes Rule 7.5(c), which bars using the name of a lawyer holding public office in a firm name during any substantial period in which the lawyer is not actively and regularly practicing with the firm. Whether a lawyer is actively and regularly practicing is a question of fact. The Committee distinguishes a lawyer elected to full-time public office, where the time demands preclude active and regular practice over a substantial period (citing a Florida opinion treating an attorney elected to Congress as no longer actively practicing), from Utah's legislature, which sits for seven consecutive weeks a year. Seven weeks is not a substantial enough period to require removing the legislator's name, provided he is actively and regularly practicing during the other 45 weeks.

The Committee then turns to the harder case. If the lawyer-legislator is not actively and regularly practicing during the remaining 45 weeks, Rule 7.5(a) (a firm name, letterhead, or designation must not violate Rule 7.1) and Rule 7.1 (no false or misleading communication) come into play. The Committee reasons that including the name of a lawyer who is no longer actively and regularly practicing may mislead, because it implies the lawyer is available to provide legal services when, as a factual matter, he is not. It notes that Comment 1 to Rule 7.5 permits a firm name to include the names of deceased members where the firm's identity has continued, but says nothing about a retired member or a living individual no longer actively engaged in practice.

In practice

Under this opinion, a Utah firm may keep a lawyer-legislator's name in the firm name through the seven-week legislative session, which the opinion treats as too short to be a substantial interruption under Rule 7.5(c), as long as the lawyer is actively and regularly practicing with the firm the rest of the year. Per the opinion, the analysis turns on the factual question of active and regular practice: if the lawyer is not actively and regularly practicing during the remaining weeks, the opinion concludes that keeping his name may be a false or misleading communication under Rules 7.5(a) and 7.1. The opinion was issued under the Utah rules as they stood in 2018 (Utah later reorganized its advertising rules); confirm the current rule numbering and text before relying on Rule 7.5.

Common questions

Q: Can a Utah firm keep a partner's name in the firm name while he serves in the state legislature?

A: Yes during the legislative session, under this opinion. The Committee concludes the seven-week Utah session is not a substantial enough period under Rule 7.5(c) to require removing the name, provided the lawyer is actively and regularly practicing during the rest of the year.

Q: What if the lawyer-legislator does very little legal work the rest of the year?

A: Then keeping the name may be improper. The opinion reasons that if the lawyer is not actively and regularly practicing, including his name may be a false or misleading communication under Rules 7.5(a) and 7.1, because it implies he is available to provide legal services when he is not.

Q: How is "actively and regularly practicing" decided?

A: As a question of fact. The opinion states whether a lawyer is actively and regularly practicing with the firm is a factual determination, contrasting a lawyer in full-time public office (whose service precludes active practice over a substantial period) with one serving only seven weeks a year.

Background and rules framework

The opinion interprets Utah's lawyer-advertising rules as they stood in 2018. Rule 7.5(c) restricts using the name of a lawyer holding public office in a firm name during a substantial period of non-practice; Rule 7.5(a) requires that a firm name, letterhead, or professional designation not violate Rule 7.1; and Rule 7.1 prohibits false or misleading communications about a lawyer or the lawyer's services. The ABA Model Rules numbered firm-name guidance as Model Rule 7.5 at the time (later folded into Model Rule 7.1), and Utah has since revised its own advertising rules.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / Utah RPC 7.1 (false or misleading communications)
• MR 7.5 / Utah RPC 7.5(a), 7.5(c) (firm names; lawyer holding public office)

Other opinions cited:

• Professional Ethics of the Florida Bar, Op. 70-64 (Feb. 22, 1971): an attorney elected to Congress is no longer actively and regularly practicing

See also

• Utah Ethics Op. 21-02: Permissible Firm and Trade Names Under Amended Rule 7.1
• ABA Formal Op. 90-357: Use of the "Of Counsel" Designation
• ABA Formal Op. 94-388: Relationships Among Law Firms

Source

• Landing page: https://www.utahbar.org/ethics-opinions/18-01/

Original opinion text

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

Issue

1. May a firm name continue to include the name of a founding partner who is 1) an elected legislator in the part-time state legislature and 2) engages in very little legal work but has not formally retired?

Opinion

Background

2. The founding partner of a law firm established decades ago is the first partner listed in the firm name. The founding partner also serves in as an elected public official in Utah's part-time legislature. The founding partner is of an age eligible for retirement but has not formally retired, although he does very little legal work for clients.

Discussion

Analysis

3. Rule 7.5(c) provides that "The name of a lawyer holding public office shall not be used in the name of a law firm, or in communications in its behalf, during any substantial period in which the lawyer is not actively and regularly practicing with the firm."

4. The question of whether an attorney is "actively and regularly practicing" law with a firm is a factual one.

5. Where a lawyer is elected to full-time public office, the time demands of that service preclude the active and regular practice of law over a substantial period of time, and thus, the inclusion of the lawyer's name in the firm name or in communications on its behalf such as in letterhead. See, e.g., Professional Ethics of the Florida Bar, Opinion 70-64, February 22, 1971 (opining that "An attorney who is elected to Congress is considered no longer actively and regularly practicing").

6. The Utah State legislature is in session for seven consecutive weeks during a year. Seven weeks is not a period of time substantial enough to require a legislator who is also a lawyer to remove his name from his law firm's name or other firm communications, even if he is not actively practicing law during the seven weeks of the legislative session. There is no violation of Rule 7.5(c) when the part-time legislator's name remains part of the firm name during the seven week legislative session, provided he is "actively and regularly practicing with the firm" during the other 45 weeks of the year.

7. If the lawyer/legislator is not "actively and regularly practicing with the firm" during the other 45 weeks of the year, additional questions arise under Rule 7.5(a). Rule 7.5(a) states "A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1."

8. In relevant part, Rule 7.1 provides that: A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified or unreasonable expectation about results the lawyer can achieve or has achieved . . . .

9. When a lawyer is no longer actively and regularly practicing law, including her name in the firm name may be a misleading communication about the lawyer or the lawyer's services. Including the lawyer's name in the firm name or law firm communications such as letterhead implies that she is available to provide legal services to clients when as a factual matter she is not. Comment 1 to Rule 7.5 allows a firm name to include "the names of deceased members where there has been a continuing succession in the firm's identity" but makes no mention of the name of a retired member, an individual who continues to be affiliated with the firm but whose status may have changed from member to non-member, or of a living individual who is no longer actively engaged in the practice of law.