March 29, 1994
Lawyers who are not in fact in the same law firm may not use joint letterhead.
Lawyers who are not in the same law firm may use joint advertising, as long as the advertising clearly delineates the relationship between the firms and does not infer that the independent lawyers operate as one firm.
Communications about services available from a number of independent law firms may not describe the relationship between the firms to be an "affiliation" without further clarifying the meaning of the term.
Whether lawyers who are not in the same law firm, but who regularly refer cases to each other or work together on cases, are disqualified when one of them has a conflict of interest depends upon the exact relationship between the independent lawyers and the facts of the particular case.
References: MRPC 1.4(b), 1.5(e), 1.6, 1.7, 7.1, 7.5; R-17; C-230; RI-45, RI-116, RI-130.
A law firm proposes to enter into an "affiliation" with two or three other "specialized" law firms to provide clients with more complete legal counsel and to expand the scope of their client relationships. Although each of the firms is operated and managed independently, they intend the "affiliation" to enable them to undertake matters in various "specialties" as needed without the high overhead costs incurred by large law firms. The lawyer who brings the client into the office monitors the work progress and retains the client after the work is finished. When a team of lawyers works on a case, the client normally gets one bill, unless it is agreed that each lawyer will send a separate bill. The lawyers within the "affiliation" are free to accept any case they deem appropriate for their particular practice and to personally control the growth of their own law firm. The lawyers ask:
- May they may use joint letterhead?
- May the term "affiliated" be used on letterhead and other communications without further explanation?
- If one firm has a conflict of interest, may the client be referred to one of the affiliated firms?
MRPC 7.5(a) and (d) state:
"(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.
". . .
"(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."
MRPC 7.1 states in pertinent part:
"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."
Whether lawyers who are not in fact in the same firm may share a firm name, letterhead or other joint communication about services has been addressed in other opinions. In C-230 lawyers who belonged to separate professional corporations, but from time to time worked on cases together on a contract basis, were prohibited from using joint letterhead, even with a disclaimer that the lawyers were "an association of professional corporations." See also, RI-59; CI-111, CI-298. In RI-45 a partner-shareholder who left a partnership-professional corporation but continued to share office space with the firm, could not continue to be listed on the letterhead of the former partnership-professional corporation or be included in the former firm's firm name. In RI-130 a lawyer was prohibited from franchising a trade name under which a number of lawyers who are not in fact in a partnership or professional corporation relationship hold themselves out as practicing under one firm name.
These opinions were based upon interpretations of MRPC 7.1 and 7.5, and their predecessors. The inquirers may not use joint letterhead, even with a disclaimer, since the joint letterhead would infer that the lawyers are in one firm when that is not the case, and would therefore be misleading. The lawyers may use joint advertising, as long as the advertising clearly delineates the relationship between the firms by disclosing that the independent lawyers do not operate as one firm.
As the inquirer describes the relationship between the firms, the firms intend to offer clients expertise in more fields of practice by pooling their services; the arrangement is called an "affiliation." The Committee is unaware of any particular specialized meaning of the term "affiliation" which makes the term appropriate or inappropriate to describe the firms' relationship. Without additional facts we are unable to conclude that the proposed use of the term "affiliation" is false, fraudulent, deceptive or misleading, but its meaning in the context presented is definitely unclear and would require further explanation. See MRPC 1.4(b). If the terminology does not clearly convey an accepted meaning it is deceptive by implying some non-existent meaning. MRPC 7.1.
Finally, the inquirer asks if one firm has a conflict of interest, may the client be referred to one of the affiliated firms? The Committee has not been provided with a specific fact situation in which a conflict has arisen, and thus any response to the question posed must be general in nature.
The facts indicate that one lawyer oversees the case from beginning to end, although other lawyers in the affiliation may work on parts of the case. If this is so, then the lawyers have presumably obtained the client's permission to share confidences and secrets [MRPC 1.6], share the fee [MRPC 1.5(e)], etc. Whether lawyers working together on a case are imputedly disqualified when one of them has a conflict is partially determined by the facts of the particular case. See, e.g., "The exact relationship is immaterial, so long as they were in some way associated in the practice of law," Skokie Gold Standard Liquors v. Joseph E. Seagram & Sons Inc, 452 NE2d 804 (Ill App 1983); if no confidential information is exchanged, co-counsel is not imputedly disqualified, Brennan's Inc v. Brennan's Restaurants Inc, 590 F2d 168 (CA5 1979); "of counsel" may be imputedly disqualified ABA Op i1315; "of counsel" not imputedly disqualified, Jensen v. Touche Ross & Co, 335 NW2d 720 (Minn 1983).