Can a West Virginia sole practitioner who employs associates use a firm name like 'Law Offices of Smith & Jones' when no partnership exists?

Plain-English summary

The Lawyer Disciplinary Board answered an inquiry from a lawyer about his practice's name. The practice was formerly "Law Office of John Smith." Smith employs three other attorneys and had changed the name to "Law Offices of Smith & Jones" to recognize the work of a long-time employee. The practice is not a partnership; Jones does not share in the profits or liabilities. The lawyer wanted to add another employee's name to the letterhead.

The Board quoted Rule 7.5(d), which provides that lawyers may state or imply that they practice in a partnership or other organization only when that is the fact, and the comment stating that lawyers sharing office facilities who are not in fact partners may not denominate themselves as, for example, "Black & White," because that title suggests partnership in the practice of law. Because a law firm name is a form of public communication, the Board noted that a name which is also misleading may violate the prohibition against false or misleading communication in Rule 7.1. The Board opined that "Law Offices of Smith & Jones," like "Smith & Jones," suggests a partnership where one does not in fact exist and is therefore prohibited by Rule 7.5(d). The Board said this position was consistent with its past informal advice to a legal corporation, disapproving a trade name that sounded like a partnership.

The Board distinguished the lawyer's intent from the effect: Smith was not trying to give the public the appearance that his firm is larger than it really is, as do lawyers who share office space but use a partnership-sounding name. The name was nonetheless misleading because the law imposes responsibilities and liabilities on partners that may not apply to a sole proprietorship that employs attorneys, and while partnership law may apply to apparent partnerships, a client suing the firm should not be required to litigate that issue in the first place. The Board stated its opinion was in accord with Alabama State Bar opinion 91-04 (3/1/91), which restricted the use of a non-partner name in a law firm name because the rules prohibit misleading designations, and which noted that prior ethics opinions have disapproved of misleading the public as to the identity, status, and responsibility of lawyers within a firm.

Currency note

This opinion was issued in 1994, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). Subsequent rule amendments 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: Could a sole practitioner who employs associates name the firm "Smith & Jones" after an employee?

A: No. The opinion concluded that "Law Offices of Smith & Jones," where Jones is an employee and no partnership exists, suggests a partnership that does not in fact exist and is prohibited by Rule 7.5(d).

Q: Did it matter that the lawyer was not trying to look bigger?

A: No. The opinion concluded the name was still misleading to the public, distinguishing the lawyer's intent from the effect of a partnership-sounding name.

Q: Why is a false partnership name a problem beyond appearances?

A: The opinion explained that the law imposes responsibilities and liabilities on partners that may not apply to a sole proprietorship employing attorneys, and a client suing the firm should not have to litigate whether an apparent partnership exists.

Background and rules framework

The opinion interpreted West Virginia's Rules of Professional Conduct as they stood in 1994. Rule 7.5(d) (Model Rule 7.5) provided that lawyers may state or imply that they practice in a partnership or other organization only when that is the fact, with a comment that lawyers sharing office facilities who are not in fact partners may not use a name suggesting partnership. The Board tied the rule to Rule 7.1 (Model Rule 7.1), which prohibits false or misleading communication, treating a firm name as a form of public communication. The Board aligned its conclusion with Alabama State Bar opinion 91-04 (1991).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 / WV Rule 7.5(d) (firm names; stating or implying a partnership only when it exists)
• Model Rule 7.1 / WV Rule 7.1 (false or misleading communication)

Other opinions cited:

• Alabama State Bar opinion 91-04 (3/1/91): restricting use of a non-partner name in a law firm name as a misleading designation

See also

• WV Ethics Op. 97-01: Trade Names in Advertising
• AL Ethics Op. 1993-11: 'Associates' in a Firm Name
• ABA Formal Op. 94-388: Relationships Among Law Firms

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7dc87f33b17d49ff04.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

L.E.I. 94-04

The Propriety of Firm Names Which Sound Like a Partnership

The Lawyer Disciplinary Board received an inquiry from an attorney about the propriety of his law practice's name. Formerly it was "Law Office of John Smith." The lawyer employs three other attorneys. He changed the name to "Law Offices of Smith & Jones" in recognition of the work of one of his long-time employees. The law practice is not a partnership; Jones does not share in the profits or liabilities. The lawyer now wants to add the name of another employee to the letterhead.

Rule 7.5(d) of the Rules of Professional Conduct states, "Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact." The comment to this subsection states,

[L]awyers sharing office facilities, who are not in fact partners, may not denominate themselves as, for example, "Black & White" for that title suggests partnership in the practice of law.

A law firm name is a form of public communication. Therefore, a name which is also misleading may violate the prohibition against false or misleading communication contained in Rule 7.1 of the Rules of Professional Conduct.

The Board opines that "Law Offices of Smith & Jones" like "Smith & Jones" suggests a partnership where one does not in fact exist and is therefore prohibited by Rule 7.5(d). This position is consistent with the Board's past informal advice to a legal corporation, disapproving its use of a trade name that sounded like a partnership.

Lawyer Smith is not trying to give the appearance to the public that his firm is larger than it really is, as do lawyers who share office space but use a partnership-sounding name. However, the name is still misleading to the public. The law imposes certain responsibilities and liabilities upon partners in a partnership which may not apply to a sole proprietorship which employs attorneys. While partnership law may apply to apparent partnerships, a client suing the law firm should not be required to litigate the issue in the first place.

This opinion is in accord with Alabama State Bar opinion 91-04 (3/1/91) restricting the use of a non-partner name in a law firm name because the rules prohibit misleading designations. The opinion noted that prior ethics opinions have disapproved of misleading the public as to the identity, status and responsibility of lawyers within a firm.

STEPHEN JORY, CHAIRMAN
The Lawyer Disciplinary Board
State of West Virginia

7/16/94