What firm names and trade names are allowed under Utah's amended Rule 7.1?

Plain-English summary

Opinion 21-02 followed the Utah Supreme Court's December 2020 consolidation of the advertising rules, which deleted Rules 7.2 through 7.5 and folded firm-name questions into a rewritten Rule 7.1. The Committee was asked what firm names are appropriate under the amended rule. Its answer is that the controlling test is whether the name is false or misleading; a firm name is a communication to the public and is governed by Rule 7.1(a)'s prohibition on material misrepresentations and misleading omissions.

The Committee applied Comment [7] to Rule 7.1, which allows a firm to be designated by the names of current members, by deceased or retired members where there has been a succession in the firm's identity, or by a trade name that is not misleading. Using the example of "Jane Doe and Associates," the Committee concluded that purchasing lawyers, or even a purchaser with no prior relationship to the firm, may continue the trade name as a permissible succession, with Rule 1.17 allowing the sale of a practice including its goodwill so long as the selling lawyer ceases practice in the same geographic area or field. The continuation name becomes misleading, however, if the departed named lawyer returns to practice in the same area or subject matter.

The Committee also flagged the familiar limits: a solo practitioner may not use "& Associates" if there are no associates, though "& Associates" may be used where other lawyers are "of counsel" or contract lawyers who spend the majority of their time on the firm's matters; trade names referencing a category of clients (such as "Legal Center for the Wrongfully Accused") are permissible if the firm represents clients in that category; and a name suggesting a government connection requires a disclaimer. The Committee declined to opine on names of entities approved for Utah's "Sandbox" under Rule 5.4(b), which the Supreme Court controls.

In practice

Under this opinion, a Utah firm evaluating a trade name or a continuation name should ask whether the name is false or misleading under Rule 7.1. Per the opinion, retaining the name of a departed or deceased member is permitted as a succession, and a buyer of the practice may keep the name under Rule 1.17, but the name becomes misleading if the named lawyer resumes practice in the same geographic area or subject matter, or if the name implies a government connection without a disclaimer.

Common questions

Q: Can a Utah firm keep using a retiring partner's name in a trade name?

A: Under this opinion, yes. The Committee concluded that a firm may use a trade name including the name of a departed or deceased member as a permissible succession, provided the name is not false or misleading and, where the practice is sold, the selling lawyer complies with Rule 1.17.

Q: When does keeping a former lawyer's name become misleading?

A: The opinion states that the name becomes misleading if the departed lawyer returns to the practice of law in the same geographic area or the same subject matter, because the name would then misrepresent where that lawyer practices.

Q: Can a solo practitioner call the firm "Doe & Associates"?

A: Not if there are no other lawyers. The opinion reaffirms that "& Associates" is misleading for a true solo, but may be used where other lawyers are "of counsel" or contract lawyers who regularly spend the majority of their working time on the firm's matters.

Background and rules framework

The opinion interprets Utah Rule of Professional Conduct 7.1 (corresponding to ABA Model Rule 7.1) as amended in December 2020, including Comments [3], [4], [7], and [9], which treat firm names, letterhead, and professional designations as communications about a lawyer's services. It applies Rule 1.17 (sale of a law practice, corresponding to Model Rule 1.17) to the continuation of a firm name after a sale, and notes Rule 5.4(b)'s "Sandbox" provision without opining on it.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / Utah RPC 7.1 (false or misleading communications; firm names and trade names)
• MR 1.17 / Utah RPC 1.17 (sale of a law practice, including goodwill)
• Utah RPC 5.4(b) (Sandbox provision; Committee declined to opine)

Other opinions cited:

• Utah Ethics Op. 138 (1994) (solo may not use "& Associates")
• Utah Ethics Op. 04-03 (2004) ("& Associates" with of-counsel or contract lawyers)
• Utah Ethics Op. 01-07 (2001) (category trade names)

See also

• ABA Formal Op. 90-357: The "Of Counsel" Designation
• ABA Formal Op. 507: Office Sharing With Lawyers
• AL Ethics Op. 1993-11: "Associates" in a Firm Name

Source

• Landing page: https://www.utahbar.org/ethics-opinions/21-02/

Original opinion text

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

Issue

1. Rule 7.1 of the Utah Rules of Professional Conduct was recently amended. What firm names are appropriate under the amended Rule 7.1?

Opinion

2. A firm can use a trade name, including the names of departed lawyers, provided the name is not false or misleading as defined in Rule 7.1 and the Comments to it.*

*This request for an ethics advisory opinion was submitted anonymously. The Ethics Advisory Opinion Committee ("EAOC") is charged with answering questions concerning the requesting attorney's conduct. The EAOC has chosen to answer this request because it appears to be a question that would assist the Bar as a whole. The fact that the EAOC has chosen to answer this request should not be interpreted as practice it will follow for future anonymous requests. Attorneys need to identify themselves when submitting requests.

Discussion

3. In December 2020, the Utah Supreme Court amended the Utah Rules of Professional Conduct regarding communications concerning a lawyer's services. The Court deleted previous Rules 7.2 through 7.5 and then incorporated communications concerning a lawyer's services into a new and single Rule 7.1.

4. The key concept in the amended Rule 7.1 is that communications regarding a lawyer's services must not be false or misleading.

5. With respect to the questions posed, a communication is false or misleading if it "contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." Utah R. Prof. Cond. 7.1(a)(1).

6. The name of a firm is a communication to the public. Utah R. Prof. Cond. 7.1.

Comment [7] to Rule 7.1 provides:
Firm names, letterhead and professional designations are communications concerning a lawyer's services. A firm may be designated by the names of all or some of its current members, by the names of deceased or retired members where there has been a succession in the firm's identity or by a trade name if it is not false or misleading. A lawyer or law firm also may be designated by a distinctive website address, social media username or comparable professional designation that is not misleading. A law firm name or designation is misleading if it implies a connection with a government agency, with a deceased lawyer who was not a former member of the firm, with a lawyer not associated with the firm or a predecessor firm, with a nonlawyer or with a public or charitable legal services organization. If a firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an express statement explaining that it is not a public legal aid organization may be required to avoid a misleading implication.

7. Further, Rule 7.1 precludes lawyers from representing that they are practicing together when they are not in a firm. Utah R. Prof. Cond. 7.1 cmt. [9].

8. The requestor asks under what conditions a firm may use the name of a deceased or departing member. Rule 7.1 treats using the name of a deceased member of a firm and a departing member of a firm somewhat differently. However, in both cases the underlying presumption is that a succession of law practice by members of the same firm continues. Utah R. Prof. Cond. 7.1 cmt. [7].

9. The use of a continuous name by Firm One may become a misrepresentation if the member departing from Firm One returns to the practice of law in Firm Two. In such a case, Firm One would be required to change names so as to avoid misrepresenting to the public that the departed member continues to practice law there rather than at Firm Two.

10. Specifically, the requestor posits a situation where a sole proprietor (Jane Doe) practices with associates under the name "Jane Doe and Associates." Jane wishes to retire and sell the firm to her associates. The name "Jane Doe and Associates" has acquired a positive reputation in the community. Both Jane Doe and the purchasing lawyers wish to retain the name "Jane Doe and Associates" in order to increase the value of the firm and capitalize on the goodwill the firm has acquired over the years.

11. The purchasing lawyers may properly use "Jane Doe and Associates" as a trade name. Rule 7.1 allows the use of trade names that are not misleading. Utah R. Prof. Cond. 7.1 cmt. [7]. In the context of the question posed, the continued use of the trade name would not be misleading because it contains the name of a former member. Rule 7.1 specifically allows this practice. Utah R. Prof. Cond. 7.1 cmt. [7].

12. If, however, Jane Doe returned to the practice of law in the same geographic area or in the same subject matter, then the name "Jane Doe and Associates" would become misleading.

13. A purchaser with no prior relationship with the firm could also use the trade name. Rule 1.17 allows the sale of the firm including "good will." Rule 1.17 requires the selling lawyer to cease practicing in the same geographic area or in the same area of practice. This comports with the requirement under Rule 7.1 that the continuation name not be false or misleading. Utah R. Prof. Cond. 7.1 cmt. [4].

14. However, a trade name could be false or misleading under Rule 7.1. A solo practitioner may not use the name "Doe & Associates" if there are no longer any associates at the firm. Utah St. Bar Eth. Op. No. 138 (1994). However, a firm may use the moniker "& Associates" if there are attorneys "of counsel" or working on a contractual basis, provided the other lawyers regularly spend the majority of their working time on matters for the firm. Utah St. Bar Eth. Op. No. 04-03, 2004 WL 1304775 (2004). Similarly, a firm may use a trade name such as "Legal Center for the Wrongfully Accused" or ". . . for Victims of Domestic Violence" provided the firm does represent clients who claim to be in the categories referenced. Utah St. Bar Eth. Op. No. 01-07, 2001 WL 1018895 (2001). See also Hazard, Hodes and Jarvis, 2019-1 Supplement at 59-12.2.

15. A trade name may also be deceptive if it contains the name of a political subdivision without a disclaimer that the law firm is not associated with the government. In such cases, a disclaimer of political connections would be appropriate. "The inclusion of an appropriate disclaimer or qualifying language may preclude a finding that a statement is likely to create unjustified expectations or otherwise mislead the public." Utah R. Prof. Cond. 7.1 cmt. [3].

16. The requestor asks a number of questions concerning ethical use of a lawyer's name under the new "Sandbox" provisions of Rule 5.4(b). Utah R. Prof. Cond. 5.4(b). The Utah Supreme Court controls access to the Sandbox. We express no opinion as to the names of entities approved by the Supreme Court for access to the Sandbox.