Opinion No. 2001-06

(Inquiry No. )

Firm name lawyers who only share expenses.
May lawyers use a firm name as partners when they only perform minimal professional work and don’t share employees but only share expenses for supplies and telephone charges.
Code Provisions:
DR 2-102 (B)
EC 2-11
EC 2-13
DR 2-102 (A)
DR 2-102 (D)
DR 2-102 (C)
Facts Presented:
Inquirer shares telephone and office supply charges with another attorney and both have separate employees and want to use a firm name as partners.
May a firm name as a partnership be used by attorneys who only share telephone and office supply expenses.
No, sharing a partnership name under the facts presented is prohibited.
EC 2-13 is directly on point with the inquiry presented to the Committee and states: “In order to avoid the possibility of misleading persons with whom a lawyer deals, a lawyer should not hold himself or herself out as being a partner or associate of a law firm if not one in fact, and thus, should not hold himself or herself out as being a partner or associate if the lawyer only shares offices with another lawyer.

Additionally, DR 2-102(B) states:
A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation shall contain “P.C.” or such symbols permitted by law, the name of a limited liability company or partnership shall contain “L.L.C.,” “L.L.P.” or such symbols permitted by law, and, if otherwise lawful, a firm may use as, or continue to include in its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Such terms as “legal clinic,” “legal aid,” “legal service office,” “legal assistance office,” “defender office” and the like, may be used only by qualified legal assistance organizations, except that the term “legal clinic” may be used by any lawyer or law firm provided the name of a participating lawyer or firm is incorporated therein. A lawyer who assumes a judicial, legislative or public executive or administrative post or office shall not permit his or her name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which the lawyer is not actively and regularly practicing law as a member of the firm and, during such period, other members of the firm shall not use the lawyer’s name in the firm name or in professional notices of the firm.

Moreover. DR 2-102(C) states:
A lawyer shall not hold himself or herself out as having a partnership with one or more other lawyers unless they are in fact partners.

Lawyers who merely share offices but are not partners must be careful that their announcements do not falsely imply a partnership, because DR 2-102(C) provides that a lawyer “shall not hold himself or herself out as having a partnership with one or more other lawyers unless they are in fact partners.” Thus, if a new lawyer moves into the suite of the office-sharing lawyers, it would be unwise to send a joint announcement. Similarly, if all of the office mates move to new offices, each lawyer should send a separate announcement of the move. If a joint announcement is sent, it should explicitly state that the lawyers are not partners. . . . Thus, two lawyers who practice separately may not save money by erecting a common sign if the single sign falsely implies that they are partners. That would violate DR 2-102(C), which provides that a lawyer “shall not hold himself or herself out as having a partnership with one or more other lawyers unless they are in fact partners.” Thus, a sign saying “Law Office of Mantle & Maris” would be improper unless Mantle and Maris are partners, but a sign with two lines, one line saying “Law Offices of Mickey Mantle” and the other line saying “Law Offices of Roger Maris,” would be proper.

Two relevant Ethics Opinions discuss this issue and are printed in pertinent part in Simon’s Code of Professional Responsibility on page 106:

Nassau County Bar Op. 96-12 (1996): “A sole practitioner, Attorney A., shares office space with another sole practitioner, Attorney B They have no other professional relationship May the two of them advertise together in one advertisement that would solicit potential personal injury clients for Attorney A. and criminal defense clients for Attorney i3.? Yes, they may advertise together, provided they abide by the restrictions of the Code, including DR 2-102(C), which prohibits an attorney from holding himself out to be a partner where no such partnership exists. Therefore:
[A]ny such joint advertising must make the representation to the public that the attorneys who are jointly advertising are independent practitioners, either through appropriate physical bifurcation of the advertisement, or via meaningful express language prominently mentioned in the advertisement, clearly informing the public that the attorneys are not a partnership and are independent sole practitioners A potential client must be able to tell from the first reading of the advertisement that they are not engaging a partnership but a…”

N.Y. City Bar Op. 1995-8 (1995): Under DR 2-102(A), a law firm may be “of counsel” to another law firm if it maintains a “continuing” relationship with the other law firm, meaning a “close, regular, personal relationship.” (The Committee noted that allowing a law firm to serve as “of counsel” departed from the Committee’s earlier opinions 89-1 and 81-3, and followed ABA Formal Op. 9013357.) If the law firms use the “of counsel” designation, however, they must keep in mind that “for purposes of analyzing conflicts of interest, `of counsel’ relationships are treated as if the `counsel’ and the firm are one unit.” The “of counsel” designation may not be used, however, to designate a relationship that arises “by the mere referral of business between firms or an occasional consulting relationship.” [An “of counsel” relationship does not arise as a result of consultation on a single case. “Of counsel” must mean something more than merely “a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms.”]

However, contrary to the facts presented in this inquiry, if a partnership existed and a partner retired, the partnership may continue but the letterhead must clearly delineate the retired partner is “of counsel” and the “of counsel” relationship may continue on whatever basis the attorneys choose.

Therefore under the facts presented, sharing a partnership name is prohibited.