RI-173

October 7, 1993

SYLLABUS

A lawyer may select a common name as the title of the lawyer's firm, even if no individual with that surname practices with the law firm, as long as the selection of the name is not otherwise misleading or deceptive.

References: MRPC 7.1, 7.5(a); Friedman v. Rogers, 440 US 1 (1979).

TEXT

A named person in a four-person law firm inquires whether they may rename the law firm "[surname] Law Firm" even though there are no members of the firm with that surname. The name was selected after an historic building in the town to which building the firm will be relocating.

MRPC 7.5(a) states:

"(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and it is not otherwise in violation of Rule 7.1."

MRPC 7.1 states:

"A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. A communication shall not:

"(a) contain a material misrepresentation of fact or law, or omit a fact necessary to make the statement considered as a whole not materially misleading;

"(b) be likely to create an unjustified expectation about results the lawyer can achieve, or state or imply that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law; or

"(c) compare the lawyers' services with other lawyers' services, unless the comparison can be factually substantiated."

The policy behind MRPC 7.5 is to ensure that no unjustified expectations are created for clients or potential clients, and further that clients, potential clients, and others are not deceived or misled in any way. One could argue that the use of a surname in the title implies that a lawyer of that name is a member of the firm and thus would be misleading when this is not the case. Yet, it has been a common practice to allow the use of the surname of deceased partners in law firms, even when those individuals are obviously no longer with the firm. See RI-45. The current proposed situation is no more misleading than the accepted practice of using the surname of a deceased lawyer in a law firm.

It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm. Geoffrey C. Hazard, Jr. and W. William Hodes, in The Law of Lawyering, notes that the "traditional prohibition against use of trade names arose as an adjunct to the rules on lawyer advertising. In the era where such advertising was totally prohibited, some lawyers endeavored to conduct what amounted to law practice under the guise of some other activity, which they then could advertise." It goes on to note that once the prohibitions on advertising were altered in those areas that allow the use of traditional trade names "there appears to be no legitimate reason for barring other non-deceptive trade names . . . ." Id. at 911. It notes that in the case of New York Criminal and Civil Courts Bar Ass'n v. Jacoby, 61 NY2d 130; 460 NE2d 1352; 472 NYS2d 890 (1984), New York's highest court allowed the firm of Jacoby & Meyers to use that name in New York, even though neither of those lawyers then or previously were admitted to practice in the State of New York. The court stated:

"We find no significant differences between the use in a firm name of the surname of a deceased partner and the surname of a partner not practicing in New York. In both instances the firm name is an institutional description."

In the present case, the letterhead of the law firm will indicate the address in a building carrying the same name as the law firm, with the street address following. The building was named after an individual who came to Michigan in 1819. After a short stint as deputy clerk and United States Marshal, the individual became a topographer and surveyor for the Governor of the Territory of Michigan, accompanying him on a 4,400 mile odyssey around the State of Michigan. The individual later became a bank president and was involved in real estate but not in the practice of law. He died in the nineteenth century.

While not essential to this opinion, it should be noted that there is no person listed on the roster of attorneys licensed to practice in the state bearing the name of the historic individual.

Selecting the name of a prominent lawyer or political figure not affiliated with the firm, or selecting the name "[Surname] and X," with X being the surname of one of the lawyers actually in practice, would be misleading. In the latter example, the joining of the name of the historic individual with the surname of one of the lawyers in that firm would suggest that all of the individuals named had a affiliation with the firm in the present or in the past. In the present case, the selection of the name "[Surname] Law Firm" reflects the firm's identification with its location in a famous historical building. On these facts, it cannot be considered to be misleading and is an acceptable means of identification under MRPC 7.1 and 7.5.

In Friedman v. Rogers, 440 US 1 (1979), the Supreme Court upheld the constitutionality of a state licensing agency prohibiting the use of trade names for professional optometry services. Yet, the Court noted that "[t]he use of trade names . . . is a form of commercial speech and nothing more." The Court noted that the potential communicative value of the trade name must be balanced against its potential to deceive or mislead. While the Supreme Court determined that states could prohibit trade names for professional services, the Supreme Court of the State of Michigan has elected not to do so. Because there is nothing misleading in the name proposed, the firm's use of the name does not violate ethics rules.

A law firm may select a common last name as the title of the firm even if no individual with that surname practices with the law firm as long as the selection of the name is not otherwise misleading or deceptive.