October 8, 2020: Naming your firm is an important task. There are many ethical traps lawyers can fall into if they’re not careful when choosing a name. We’ve outlined the many conventional naming practices for law firms and what each one can imply if not applied in the right context. Choose a name you like and follow ethical recommendations by reading this blog.
For hundreds of years, American law firms have largely been named after one or more of the founding attorneys. Eponymous law firms like Shearman & Sterling and Reed Smith Shaw & McClay were the rule, with few exceptions. But in an era of online marketing and search-engine optimization, lawyers naming new law firms or rebranding existing practices are more than ever eschewing traditional naming conventions and using firm names to convey brand identities. Regardless of the method used to name a law firm, lawyers must be careful to avoid ethical pitfalls.
In Illinois, Rule 7.5 of the Rules of Professional Conduct (the “Rules”) governs firm names and letterhead. Rule 7.5 prohibits firm names that are “false or misleading” and provides specific rules relating to using the names of current or former lawyers in a firm name.
As the Comments to Rule 7.5 make clear, although a law firm may continue to use the name of a retired or deceased partner in the firm name, a law firm may not be named after a non lawyer or a lawyer that was not associated with the firm or a predecessor firm. Law firms are also prohibited from using firm names that include the name of a former partner who has left the firm and joined another firm or started an independent solo practice. See ISBA Advisory Opinion on Professional Conduct No. 03-02. Likewise, if a partner leaves a firm to join the judiciary or hold public office, or if a partner has been suspended or disbarred, that lawyer’s name must be removed from the firm name.
Lawyers often question what else makes a firm name “false or misleading.” One common example is where a law firm uses two surnames, like “Doe & Buck,” but where one of the named individuals is neither an owner of the firm nor formerly owned the firm. See, e.g., In re Sorenson, 01 CH 58, M.R.20117 (May 20, 2005). This most often occurs in situations where two attorneys practice together but only one has an ownership interest in the firm, yet both are identified in the firm name.
Another common example is the situation where a solo practitioner or small firm uses a name that implies the existence of a larger firm. For example, a solo practitioner could not use a firm name like “Fawn & Partners,” as the use of the term “& Partners” clearly misrepresents that the firm has multiple partners. See In re Rayle, 04 CH 21, M.R. 21117 (Nov. 17, 2006). Ethics authorities in other states have reached similar conclusions regarding the use of like terms that also imply a larger firm than actually exists:
- Using a firm name like “Doe & Associates, LLC” is false and misleading if the firm has no associates. See, e.g. In re Mitchell, 614 S.E.2d 634 (S.C. 2005); In re Brandt, 670 N.W.2d 552, 554-55 (Wis. 2003); Portage County B. Ass’n v. Mitchell, 800 N.E.2d 1106 (Ohio 2003); Office of Disciplinary Counsel v. Furth, 754 N.E.2d 219 (Ohio 2001). However, using the plural term “& Associates” while only one associate is employed with the firm may be appropriate in the short-term as long as the firm is actively seeking to employ a second associate. See, e.g., State Bar of Ariz., Comm. on Rules of Prof’l Conduct, Op. 90-01 (1990); Minn. Lawyers Prof’l Resp. Bd., Op. 20 (2009). In at least one state, it appears that the term “& Associates” may be used in a firm that employs only a single associate, with no intent to hire a second. See, e.g., Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11 (1993).
- Use of a name like “John Deer Law Firm” is not false or misleading when used by a solo practitioner named John Deer because use of the term “Firm” does not imply the employment of multiple attorneys. See, e.g., State Bar of Georgia Formal Advisory Op. No. 16-3; N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 869 (2011); D.C. Bar, Legal Ethics Comm., Ethics Op. 332 (2005); Ala. State Bar, Off. of Gen. Couns., Formal Op. 1993-11.
- Use of a name like “Joseph Buck Law Group” is not appropriate for a solo practice, as the term “Group” implies an association of multiple attorneys. See, e.g., Sup. Ct. of Ohio Legal Ethics Op. 2006-2.
- Using a name like “Fawn Law Centers” is not appropriate where the law firm has only a single office. See, e.g., Medina County Bar Ass’n v. Grieselhuber, 678 N.E.2d 535 (Ohio 1977); Sup. Ct of Ohio Legal Ethics Op. 2006-2.
Unlike some other states, law firms in Illinois may use trade names. But, as with any other law firm name, the trade name may not be false or misleading. For example, a firm named “State of Illinois Injury Lawyers” would be false and misleading if the firm did not practice injury law. It may also be considered misleading as the reference to the “State of Illinois” could be read to imply an affiliation or association with the state government. Likewise, use of a firm name like “Best Estate Planning” may be appropriate if owned by a lawyer named Best, but would likely run afoul of the rules if meant to imply that the law firm is the superior estate planning firm.
Lawyers should be careful to ensure that, if their law firm name uses a corporate or LLC designation, like “P.C.,” the firm is properly registered with the Secretary of State. Inaccurately using a corporate or LLC designation could not only subject members of the firm to discipline but could also provide the basis for clients to seek disgorgement of fees or serve as grounds for a legal malpractice claim.
Practical considerations should also be taken into account when choosing a firm name. By identifying a particular practice area in a firm’s name, the firm may be limiting its ability to grow its practice in other areas of the law, or to take on lateral partners who may be interested in a different practice area. Likewise, using a geographical indicator, like “Northeastern Illinois Divorce Lawyers,” may limit the firm’s ability to develop a client base in other geographical areas. By naming a number of partners, a firm may be setting itself up for frequent name changes, as the departure of a named partner will in most cases necessitate a name change.
A potential client’s first impression of a law firm is often based on nothing more than the law firm’s name. The firm’s name will appear on letterhead, in email signature blocks, on business cards, and in numerous other places where a good impression needs to be made. Before deciding on a firm name, get second, third and fourth opinions. After all, while Lincoln Ogilve & Lightfoot, P.C., may sound like an excellent firm name, do you really want to be known as the “LOL firm”?
A Liability Minute blog post on Naming a Law Firm written by ISBA Mutual Risk Management Counsel Jeremy N. Boeder of Tribler Orpett & Meyer P.C.