This issue of MALPRACTICE ALERT! will begin a series of “Best Practices” articles that will take an in-depth look at a topic and provide information and resources to give lawyers ways to optimize their practice. The “Best Practices” article in this issue will focus on Firm Letterheads and Firm Names.
My thanks to Heidi Dorn of the Board of Commissioners on Grievances and Discipline and Gene Whetzel, OSBA General Counsel, for their review and comments on this article.
Last summer MALPRACTICE ALERT! addressed What Do I Do With Closed Client Files? That helpful article is available on the OBLIC website and will be added to the “Best Practices” series.
I hope the “Best Practices” series will answer many questions that come up as lawyers open a practice or transition to another firm. If you have a topic for consideration as an article for MALPRACTICE ALERT! please let me know. OBLIC is here for you!
Gretchen Mote, Editor
FIRM NAMES AND LETTERHEADS
Rule* 7.5 FIRM NAMES AND LETTERHEADS governs this aspect of professional conduct for lawyers. The rule itself is fairly straightforward, but the application can be challenging when lawyers start designing letterhead and choosing a firm name.
*Note: Throughout this article “Rule” refers to a rule of the Ohio Rules of Professional Conduct.
- FIRM NAME CANNOT BE FALSE, MISLEADING OR NONVERIFIABLE
Rule 7.5 says a lawyer can’t use a firm name, letterhead or other professional designation that violates Rule 7.1 COMMUNICATIONS CONCERNING A LAWYER’S SERVICES.
Rule 7.1 provides that a lawyer shall not make or use
- a false,
- misleading, or
communication about the lawyer or the lawyer’s services.
Rule 7.1 specifically notes that a communication is false or misleading if
- it contains a material misrepresentation of fact or law, or
- omits a fact necessary to make the statement considered as a whole not materially misleading.
Truthful statements that are misleading are also prohibited by the rule.
The goal is to avoid creating a firm name or letterhead that misleads or misrepresents the firm, making it seem something more than it is.
* Lawyers who do not actually have associates cannot call the firm “Lawyer & Associates.”
(See, Opinion* 95-1. Throughout this article “Opinion” refers to an Opinion of the Ohio Supreme Court Board of Commissioners on Grievances & Discipline.)
FIRM CAN’T USE A TRADE NAME
Rule 7.5 also indicates that 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 the name, or
- a firm name containing names other than those of one or more of the lawyers in the firm.*
(* with the exception of retired or deceased lawyers)
A common question about trade names arises when firms incorporate under a firm name and try to operate as a “dba.”
“Mary Smith Co., LPA” dba “Smith Law.”
* Attorney Smith could practice under the name “Smith Law,” if that is how the firm was designated or if the firm was a sole proprietorship.
* The firm cannot simply use dba “Smith Law,” as it does not reflect how the firm is incorporated and does not contain the proper designation required by Rule 7.5 and Gov. Bar R. III.
Another permutation of this concept is using the letters of the attorneys’ last names followed by “Law Group.”
Attorneys Able, Baker and Cook, decide they will form “ABC Law Group.”
* This name would constitute a trade name and would NOT be permissible.
Comment  of Rule 7.5 prohibits the use of a trade name or geographical or other type of identification or description.
* A lawyer cannot practice under the name “Hometown Injury Law.”
(See, Medina Cty Bar Assn. v. Grieselhuber, 78 Ohio St. 3d 373 (1997).)
- CO, LPA, LLC, ETC. MUST USE PROPER DESIGNATION
Rule 7.5 further provides (t)hat the name of
- a professional corporation or association,
- legal clinic,
- limited liability company, or
- limited liability partnership
shall (emphasis added) contain symbols indicating the nature of the organization as required by Gov. Bar R. III.
(See, Supreme Court Rules for the Government of the Bar of Ohio, Rule III Legal Professional Associations Authorized to Practice Law)
Gov Bar R. III requires that the name comply with Rule 7.5 and provides that
- the name of a legal professional association or legal clinic shall end with the legend “Co., LPA” or
- shall have immediately below it, in legible form, the words “A Legal Professional Association.”
Further, Gov. Bar R. III specifies that the name of a corporation, limited liability company, or limited liability partnership shall include a descriptive designation as required under
- Section 1701.05(A), the corporate name…shall end with or include the word or abbreviation “company,” “co.,” “corporation,” “corp.,” “incorporated,” or “inc.”
- Section 1705.05(A), the name of a limited liability company shall include the words, “limited liability company,” without abbreviation or shall include one of the following abbreviations: “LLC,” “L.L.C.,” “limited,” “ltd.,” or “ltd”.
- Section 1776.82, the name of a limited liability partnership shall contain “registered limited liability partnership,” “registered partnership having limited liability,” “limited liability partnership,” “R.L.L.P.,” “P.L.L.,” “L.L.P.,” “RLLP,” “PLL,” or “LLP.”
The type of entity a lawyer chooses for the practice is ultimately a business decision for the lawyer and OBLIC does not advise on this specific decision. Useful information on business entities is found in the award-winning OfficeKeeper publication on the website of the Ohio State Bar Association.
OfficeKeeper provides a look at the types of entities: proprietorship, general partnership, limited partnership, C corporation, S corporation and limited liability company. Basic tax and legal characteristics of the various entities are described to assist the lawyer in choosing the right entity for the specific practice.
Once the entity is chosen, it is important that all rules and statutes regarding the designated entity are followed. The language of Gov. Bar R. III is mandatory.
* Not including the proper designation for “Co., LPA” or “LLC” is a common problem we see when reviewing letterhead.
LISTING SPECIALIZATION MUST FOLLOW RULE
Can a lawyer use her/his surname followed by initials indicating a practice area or specialty? Opinion 2010-1 stated:
“It is improper for a lawyer to name a law firm the lawyer’s surname followed by the words Intellectual Property or the initials IP. The use of an area of practice or specialization in a law firm name constitutes a trade name.”
Rule 7.4: COMMUNICATION OF FIELDS OF PRACTICE AND SPECIALIZATION
- allows a lawyer to indicate that she/he does or doesn’t practice in particular fields of law or
- limits her/his practice to or concentrates in particular fields of law.
* “Mary Smith Co., LPA,” could say on her letterhead “Practice Limited to Probate Law.”
* She could NOT designate her firm “Smith Specialty Probate Law.”
Another twist on this is naming a firm to indicate that the attorney performs legal research.
* “Smith Research Company” would be a trade name and not allowable.
Rule 7.4 says while a lawyer may indicate the fields of practice noted above, a lawyer cannot state or imply the lawyer is a specialist in a particular field unless:
- the lawyer has been certified as a specialist by an organization approved by the Supreme Court Commission on Certification of Attorneys as Specialists, AND
- the name of the certifying organization is clearly listed in the communication.
OSBA certified specialists
Issues have arisen with lawyers indicating they are specialists when
* the certifying entity is not listed or
* when the entity listed is NOT one approved by the Supreme Court Commission on Certification of Attorneys as Specialists.
If a lawyer is considering certification as a specialist, it is a good idea to check that the certifying entity is indeed approved by the Supreme Court Commission.
Rule 7.4 also provides that lawyers may use the designation
- “Patent Attorney” or substantially similar designation, if admitted to engage in patent practice before the U.S. Patent and Trademark Office, or
- “Trademark Attorney” or substantially similar designation or “Admiralty” or substantially similar designation, if engaged in those practice areas.
- FIRMS WITH OFFICES IN OTHER STATES
What about firms with offices in more than one jurisdiction? Rule 7.5 says that a law firm with offices in more than one jurisdiction that lists attorneys associated with the firm shall include the jurisdictional limitations on those not licensed to practice in Ohio.
* “Smith, Jones & Doe Law, LLC,”
with offices in Ohio and Kentucky, lists:
Sally Doe – Licensed in Kentucky only
- FIRM NAMES WITH RETIRED OR DECEASED LAWYER
Another scenario involves what the firm will be called when a lawyer retires. Pursuant to Rule 7.5 if otherwise lawful(emphasis added),
- 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.
Keeping with “Smith, Jones & Doe Law, LLC” as our example,
* If Mary Smith retires, and it is otherwise lawful, the firm may continue to include her name in its name.
* If Mary Smith retires from the firm and no longer practices with the firm, but continues to practice law in another firm, the firm should remove her name.
(See, Opinion 2013-1 which states: a lawyer may practice in more than one firm at the same time, if the practice otherwise complies with the Rules of Professional Conduct.)
* If Mary Smith is deceased, the firm may still continue to use its name, if otherwise lawful, if there is a continuing succession in the firm’s identity.
* Or if the firm choses to become “Jones & Doe Law, LLC,” it could list the names and dates of predecessor firms in a continuing line of succession:
Jones & Doe Law, LLC
Smith, Jones & Doe Law, LLC,
Smith Law, LLC 2000-2004
- LISTING ATTORNEYS WITH “RETIRED” OR “INACTIVE” REGISTRATION STATUS
* If Mary Smith has “inactive “ registration status, she may be listed on the firm letterhead, if she
- is not suspended
- was listed on the letterhead prior to registering for “inactive” status
- is designated “inactive” on the letterhead
* If Mary Smith has “retired” registration status, she may be listed on the firm letterhead, if she
- was included on the letterhead prior to the time the retired status was accepted Supreme Court
- may be designated “retired”
- is not listed as “of counsel”
- is not represented as able to practice law in Ohio
(See Gov. Bar R. VI, Sec. 2 and 7)
- LISTING “OF COUNSEL”
* If Mary Smith retires and becomes “Of Counsel” to the firm, the firm may continue to use her name in its name.
* However, if Mary Smith joined the firm as “Of Counsel” and her name had not previously been in the name of the firm, her name could not be added to the firm name.
Opinion 2008-1 indicates that a lawyer may serve as “Of Counsel” to more than one firm.
* Mary Smith could then be “Of Counsel” to “Smith, Jones & Doe Law, LLC” and to “Solo Attorney, Co., LPA.”
* It must be indicated on the letterhead wherever Mary Smith is listed that she is “Of Counsel.”
Special attention must be given to all the implications of having an “Of Counsel” relationship with a firm(s), including conflicts of interest issues.
- JUDGES/FORMER JUDGES
What happens if John Jones is elected judge in County Seat, Ohio? Rule 7.5 provides that
- the name of a lawyer holding public office shall not be used in the name of a law firm, or in communications on its behalf, during any substantial periods in which the lawyer is not actively and regularly practicing with the firm.
* When John Jones takes the bench as a full-time judge, the firm will have to cease using his name in its name.
If John Jones returns to the firm when his term of office concludes, the amendments to Rule 8.2, effective June 1, 2014, permit
- A lawyer who is a retired or former judge or magistrate to use a title “justice,” “judge,” “magistrate,” “Honorable,” or ”Hon.”
- when the title is preceded or followed by the word “retired,” if the lawyer retired in good standing with the Supreme Court,
- or “former,” if the lawyer, due to the loss of an election, left judicial office in good standing with the Supreme Court.
The amendments to Rule 8.2 note that the rule controls over any conflicts with Opinion 93-8 and Opinion 2013-3.
- USING “GENERAL COUNSEL”
Another letterhead issue is whether a lawyer or law firm may be listed as “General Counsel” on the letterhead of a client organization and use the designation in signing correspondence written on behalf of the client organization.
Opinion 2009-5 found that a lawyer or law firm may do so
- if the lawyer or law firm represents the client organization in all or most of the client’s legal matters,
- devotes a substantial amount of professional time to the client organization, and
- is given the title by the client organization.
The key is that the name must be given to the lawyer or law firm by the client organization. (Note: This should be discussed with the lawyer or law firm’s professional liability insurer.)
- LISTING NONLAWYER EMPLOYEES
What about listing paralegals and other nonlawyer employees on the firm letterhead? Previously, Opinion 89-16 held that nonlawyer employees could not be listed on firm letterhead. That Opinion was withdrawn when Opinion 2012-2 was issued, holding that:
- A law firm’s letterhead and website may list the names of nonlawyer employees if the employees are clearly identified as nonlawyers through the use of job titles or other identifiers that differentiate the lawyers from nonlawyers.
- A law firm’s business cards may bear the names of nonlawyer employees if the cards include job titles or other language indicating the employee is not licensed to practice law.
- OFFICE SHARING LAWYERS CAN’T APPEAR TO BE A FIRM
Finally, Rule 7.5 informs that lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. This means that lawyers who share space cannot appear to be other than sharing space. Comment  of Rule 7.5 specifically says:
- Lawyers sharing office facilities, but who are not associated with each other in a law firm, may not denominate themselves as, for example, “Smith and Jones,” for that title suggests that they are practicing law together in a firm.
- The use of a disclaimer such as “not a partnership” or “an association of sole practitioners” does not render the name or designation permissible.
* Common phone lines cannot be answered to sound like a firm and should be answered with
* the phone number,
* the general indication “Law Offices,” or
* “The Law Office of John Smith” and “The Law Office of Sue Jones.”
- RULES APPLY TO ALL COMMUNICATION
As law firms increasingly have client contact via electronic communication, letterhead issues may seem a bit mundane. Keep in mind that how the firm is designated applies for electronic communication as well. Again, pursuant to Rule 7.1 no communication can be false, misleading, or a nonverifiable communication about the lawyer or the lawyer’s services.
The contents of this newsletter are provided for informational purposes only, and should not be construed as providing legal advice. Copyright 2014 Ohio Bar Liability Insurance Company.
- USING LOGOS WITH FIRM NAMES
Along with having an electronic presence, law firms are developing marketing plans that often involve logos and other branding. Lawyers may use logos or pictures on letterhead as long as it does not violate the rules.
For example, the firm of “Smith & Jones Law, LLC,” could use intertwined initials or legal symbols on the top of the letterhead.
The logo cannot be used as a trade name under which the lawyers seem to practice and cannot make it appear as if the lawyers are specialists, unless otherwise certified.
“Smith & Jones Law, LLC” could NOT say:
The Accident and Injury Specialists
This would be permissible on the letterhead or on the webpage next to the firm name:
Practice Limited to Plaintiff Personal Injury
If you have any questions about your firm name or letterhead, please do not hesitate to contact the OBLIC Loss Prevention Hotline at 1-800-227-4111.