Topics previously discussed in OBLICAlerts are the subject of two recent opinions by the Ohio Board of Professional Conduct. These Opinions provide further guidance on the information in Hotline Questions: Conflicts of Interest and Common Questions: Firm Names Following Amendment of Rule 7.5.

Opinion 2020-10 Law Firm Concurrent Representation of Adverse Clients in the Same Transaction examines whether lawyers in a law firm may represent two directly adverse clients in the same transaction by screening separately assigned groups of firm lawyers with the informed, written consent of the affected clients. The situation involves two long-term clients of the firm that the firm proposed to represent in the negotiation and documentation of a transaction.

The opinion states that these are sophisticated purchasers of legal services that employ full-time in-house counsel. As a condition to the legal representation, the clients and law firm will agree to a consensual ethical screen. The Board finds both a direct adversity and a material limitation conflict under the facts, per Rule 1.7(a). Applying the issue of imputation of conflicts of interest within the law firm, the Board finds that in a law firm setting, a lawyer cannot represent a client when the lawyer reasonably knows that any one of them practicing alone would be prohibited from such representation.

Further, the Board indicated that the proposed consensual screen between groups of lawyers combined with the informed consent of the clients is offered to avoid the imputation of the conflicts of interest that inherently exist in concurrent representation. However, screening is not identified as an acceptable method to ameliorate the imputed concurrent conflicts presented here. The opinion discusses other jurisdictions that have also precluded concurrent representation in a transaction of adverse clients by the same law firm or lawyer.

The opinion states that the firm’s proposal would require a departure from the rules governing the imputation of conflicts that the Board is unwilling to endorse. The opinion concludes that the law firm’s proposed concurrent representation of two adverse clients in the same transaction is not permissible.

Opinion 2020-11 Trade Name Used as Law Firm Name discusses whether a lawyer or law firm is permitted to practice under a trade name that is not connected to the lawyer’s name or his/her legal services. The opinion states that Rule 7.5 was amended effective June 17, 2020 to remove the prohibition against the use of a trade name as a firm name by a lawyer or lawyers.

The opinion defines a trade name as “a name, style, or symbol used to distinguish a company, partnership, or business (as opposed to a product or service); the name under which a business operates,” Black’s Law Dictionary (11th Ed., 2019). Pursuant to the amendment of Rule 7.5, a lawyer or law firm may permissibly practice under a firm name that utilizes a trade name, without listing a lawyer’s name or services provided, as long as the trade name complies with the Rules of Professional Conduct and the Rules for the Government of the Bar. This means:

• There is no requirement to include lawyers’ names or surnames in a firm name
  • • Use of trade name without the name of a lawyer or lawyers in the firm is permissible.
    • The lack of lawyers’ names or surnames does not implicate the prohibition against false, misleading, or nonverifiable communications.
• Cannot use a false, misleading or nonverifiable trade name
  • • May be considered misleading if it contains a material misrepresentation of fact or omits a fact necessary to make the trade name, considered as a whole, not materially misleading.
    • May be misleading if there is a substantial likelihood it will lead prospective client to conclusion about lawyer’s service for which there is no reasonable factual foundation.
    • Cannot imply results: Zero Tax
    • Cannot imply connection to government agency: Attorney General Collections
    • Cannot imply a connection to existing nonprofit or charitable organization: Legal Aid Associates

• • • Permissible examples:
      • • Law firm with multiple lawyers that concentrates law practice in representing plaintiffs in personal injury cases could ethically use trade name: Ohio Personal Injury Associates
          • Name would only be considered false or misleading if no lawyers in the firm practice PI law or if the firm ceased providing any legal services in the area of the trade name
        • Law firm that exclusively practices in insurance defense may use trade name: Ohio Insurance Defense counsel
        • Trade name is not required to reference area of law: Summit Law or First Legal
• Must comply with Gov. Bar Rule III requirements for trade names as firm names
  • • If a law firm intends to be formally identified by the use of a trade name and practices as a legal professional association, corporation, legal clinic, limited liability company, or a limited liability partnership – the trade name must comply with Gov. Bar. R. III Sec 2.
      • • Trade name of a legal professional association or legal clinic must end with: “Co., LPA”
        • Name of corporation, limited liability company, or limited liability partnership must include designation L.L.C., L.L.P., or Inc., as required under sections 1701.05(A), 1705.05(A), or 1776.82 of the Ohio Revised Code

BEST PRACTICES – CONFLICTS OF INTEREST 

• Perform conflict checks for all new clients and all new matters
• Be aware of common conflict of interest situations
• Involve all attorneys at the firm in conflicts check

BEST PRACTICES – TRADE NAMES 

• Comply with requirements of Rule 7.5 & Gov. Bar Rule III
• Not required to use lawyer surname
• Not required to reference area of law
• Do not use false, misleading or nonverifiable trade name
• Cannot imply results
• Cannot imply connection to government agency, nonprofit or charitable organization

As always, if you have ANY questions about either of these topics, please contact me at OBLIC before you take any action. We help our policyholders every day! We’re here to help you, too!

Gretchen Mote, Esq.
Director of Loss Prevention