When a lawyer is suspended or disbarred, can the firm keep using that lawyer's name in its firm name, letterhead, ads, or phone greeting?

Plain-English summary

Building on Formal Opinion 178 (misleading firm names are prohibited) and Formal Opinion 184 (employment of a disbarred lawyer), the Board of Governors clarified the obligations of lawyers who keep practicing after a colleague is suspended or disbarred. The committee said a suspension or disbarment removes the attorney from eligibility to practice for a set time, so using that attorney's name during the suspension or disbarment differs little from using any non-lawyer's name in the firm's communications.

The committee concluded that actively continuing to use the suspended or disbarred lawyer's name in letterhead, correspondence, phone greetings, and the like creates the probability of confusion for recipients, so anything short of actively removing the misleading communications as soon as possible fosters confusion or misrepresentation, implicating RPC 7.1 (false or misleading communications) and RPC 7.5(a) (firm names and designations that violate RPC 7.1). It noted RPC 8.4(c) treats conduct involving dishonesty, fraud, deceit, or misrepresentation as misconduct, and that some media (such as yellow-page advertising) cannot be corrected immediately, but said the financial impact on the firm does not excuse keeping the name. Quoting RPC 5.8(b), which bars various dealings with a disbarred or suspended lawyer, the committee concluded that the suspended or disbarred attorney's name must be removed from firm letterhead, advertisements, contracts, telephonic and email communications, brochures, websites, and the like, and kept off until the lawyer is reinstated as a licensed member of the Bar.

Currency note

This opinion was issued in 2000 and amended in 2009. The amended text references the current Washington Rules of Professional Conduct (RPC 7.1, 7.5, 8.4, and the state-specific RPC 5.8(b)), which were issued before Washington's 2006 revisions and have been revised and renumbered since. Later rule amendments or opinions may have changed the analysis. Treat this page as historical context, not current guidance, and verify against the current rules before relying on any specific provision mentioned here.

Common questions

Q: When a partner is disbarred, can the firm keep that name in its firm name?

A: The committee said no. Continuing to use a suspended or disbarred lawyer's name in the firm name and communications is misleading under RPC 7.1 and 7.5; the name must be actively removed as soon as possible and kept off until reinstatement.

Q: What communications have to be changed?

A: The committee listed firm letterhead, advertisements, contracts, telephonic communications, email communications, brochures, websites, and the like.

Q: What if changing some advertising takes time or costs money?

A: The committee acknowledged some media (for example yellow-page ads) cannot be corrected immediately, but said the financial or other impact on the firm does not excuse keeping the name; anything short of active removal as soon as possible violates the rules.

Q: How long does the prohibition last?

A: The committee said it continues until the suspended or disbarred attorney has been reinstated as a licensed member of the Bar.

Background and rules framework

The opinion interpreted RPC 7.1 (Model Rule 7.1, false or misleading communications about a lawyer's services), RPC 7.5(a) (Model Rule 7.5, firm names and designations that violate RPC 7.1), and RPC 8.4 (Model Rule 8.4, misconduct, including 8.4(c) on dishonesty and misrepresentation), and applied Washington RPC 5.8(b) (the state rule on dealings with disbarred, suspended, and resigned-in-lieu lawyers). It expressly built on WSBA Formal Opinions 178 and 184.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications)
• Model Rule 7.5 / Washington RPC 7.5, 7.5(a) (firm names and designations)
• Model Rule 8.4 / Washington RPC 8.4, 8.4(c) (misconduct; dishonesty and misrepresentation)
• Washington RPC 5.8(b) (dealings with disbarred, suspended, and resigned-in-lieu lawyers)

Other opinions cited:

• WSBA Formal Opinion 178 (misleading firm names)
• WSBA Formal Opinion 184 (employment of a disbarred lawyer)

See also

• WSBA Ethics Op. 178: Misleading Firm Names
• WSBA Ethics Op. 184: Employing a Disbarred Lawyer
• WSBA Ethics Op. 2059: Employing a Suspended Lawyer

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1537

Original opinion text

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

Advisory Opinion: 196
Year Issued: 2000
RPC(s): FO 178, FO 184, RPC 7.1, 7.5, 8.4, 5.8(b)
Subject: Use of a Suspended/Disbarred Attorney’s Name in Firm’s Name and/or Business Communications is Prohibited

In 1984, Formal Opinion 178 was adopted which stated "misleading firm names are prohibited." The Board of Governors is of the opinion that further clarification is necessary with regard to suspended/disbarred attorneys and the ethical obligations of those attorneys who continue in practice after their colleague has been suspended/disbarred.

Formal Opinion 184 (issued 1990) provides a comprehensive discussion regarding employment of a disbarred lawyer.

RPC 7.1 prohibits a lawyer from "mak[ing] a false or misleading communication about the lawyer or the lawyer’s services." 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." RPC 7.1. Rule 7.5(a) prohibits a lawyer from using a "firm name, letterhead or other professional designation" that violates RPC 7.1.

Rule 8.4 indicates that professional misconduct includes "(c) engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ."

For purposes of analysis, the suspension/disbarment removes the attorney from eligibility to practice law for a set time until readmission. Use of the suspended/disbarred attorney’s name while in that status differs little from the use of any non-lawyer’s name in the firm’s communications.

The active continued use of a suspended/disbarred attorney’s name in letterhead, correspondence, when answering phone calls, etc., lends to the possibility and probability of confusion on the part of the recipient of the message. While some forms of communication will be impractical to correct in a short period of time (e.g. yellow page advertising), any steps other than active removal of such misleading communications as soon as possible serves only to foster confusion and/or misrepresentation. RPC 7.1 and 7.5 are implicated.

While practically, the impact upon the firm might be significant both financially and otherwise, any practice other than active removal of the information will violate the ethical guidelines.

RPC 5.8(b) provides:

A lawyer shall not engage in any of the following with an individual who is a disbarred or suspended lawyer or who has resigned in lieu of disbarment:

(1) practice law with or in cooperation with such an individual; (2) maintain an office for the practice of law in a room or office occupied or used in whole or in part by such an individual; (3) permit such an individual to use the lawyer's name for the practice of law; (4) practice law for or on behalf of such an individual; or (5) practice law under any arrangement or understanding for division of fees or compensation of any kind with such an individual.

The name of the suspended/disbarred attorney shall be removed from firm letterhead, firm advertisements, firm contracts, telephonic communications, e-mail communications, brochures, web sites, and the like. This prohibition shall continue until such time as the suspended/disbarred attorney has been reinstated as a licensed member of the Bar.

[amended 2009]