Saturday, August 31, 2013

In a Word

 no-brain·er [noh-brey-ner] 

noun.  Informal. anything requiring little thought or effort; something easy or simple to understand or do.


As summer winds down, it’s once again time for some shorter, lighter fare.  Today’s ethics question ought to be a no-brainer:  “May Sally Olbilyalots, a solo attorney, practice law under the name “Olbilyalots & Associates?” 

Don’t laugh.  Okay laugh, but show a little compassion, because this particular no-brainer routinely stumps some solo practitioners who are oblivious that “& Associates” is not synonymous with “Attorney at Law” until they receive a communication from the Office of Attorney Regulation Counsel.

The Ethics of Making Yourself Look Bigger

 When encountering certain wild animals, survival experts recommend making yourself appear larger than you actually are.  Applying this technique to legal marketing apparently seems logical and desirable, at least to some solos.  This is because many clients not only want to know that “you’ve got their back,” they want to know you’ve got back-up.  The addition of “& Associates” to one’s name is a simple and expedient, albeit unethical, solution that has generated no fewer than 7 ethics opinions. 

The Colorado Bar Association’s Ethics Committee addressed this question way back in 1972 in its Opinion 50.  Opinion 50 considered whether attorneys practicing under an office sharing arrangement, but who did “not share in responsibility and liability for each other’s acts,” could collectively refer to themselves as “associates.”  

Decided under the former Code of Professional Responsibility, the Ethics Committee easily concluded, “It is clearly misleading for persons merely sharing office space to hold themselves out as associates.”  The Committee further opined that it would be similarly improper for attorneys who were in fact partners to refer to themselves as “associates,” since this would also violate Canon 2:

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. . . . DR 2-102(B).
Colo. Bar Ass’n Formal Opinion 50, Definition of Associates as Applied to Lawyers (29 November 1972). 

Although the 1 January 2008 revisions to the Colorado Rules of Professional Conduct jettisoned the long-standing prohibition against attorneys’ using trade names, revised Colo. RPC 7.5(a) continues to admonish, “A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.”  Rule 7.1(a), in turn, prohibits “false or misleading communication[s] about the lawyer or the lawyer's services.”  Consistent with Opinion 50’s finding that “[t]raditionally, in connection with the practice of law, the word ‘associates’ is used to describe lawyers who are employees of a firm,” it would be patently misleading for a solo practitioner to refer to herself as having employees when, in fact, she has none.

For solo attorneys seeking a second opinion, here are six more:  

  •  New York State Bar Association Committee on Professional Ethics Opinion 931 (7 September 12), held that a solo practitioner may not use “and Associates” based solely on employment of paralegal.
  •  Alabama Opinion of the General Counsel RO93-11, addressed the finer points of whether an attorney must have more than one attorney-employee to ethically used the appellation “and Associates,” and whether an attorney who suddenly finds himself associate-less must quickly delete “& Associates” from his letterhead.
    Considering the first question, the General Counsel found that, while it is unclear under Rule 7.1 whether an attorney must employ more than one associate to use “and Associates,” “if the attorney has only one associate, the Disciplinary Commission is of the opinion that it is not necessary to restrict the name to the singular in order to avoid misleading the public.”  Compare D.C. Bar Ethics Opinion 189 (1988) (2/16/88) (use of “and Associates” requires the regular employment of two or more attorney-employees).
    With regard to an attorney who suddenly finds himself in solo practice after having associates, the General Counsel held, “Whether a lawyer who does not presently employ other lawyers can claim that he normally employs one or more associates depends upon how long the firm has been without one or more associate attorneys and the firm's efforts to engage more associates.” 
    Finally, the General Counsel held that a lawyer in solo practice may ethically use the words “Law Firm,” “Law Office,” and “Law Offices of,” together with her name, e.g., “The Law Offices of Sally Olbilyalots.” 
  • Arizona Bar Ethics Opinion 90-01 (16 February 1990), found that use of “X and Associates” is not an improper or misleading trade name provided Attorney X in fact employs one or more lawyers.
  •  D.C. Bar Ethics Opinion 332 (18 November 2005), affirmed D.C Bar Opinion No. 189 (1988) (decided under the former Code of Professional Responsibility), finding that “a solo practitioner may not practice under the name ‘John Doe & Associates’ for the use of the word ‘associates’ would naturally be read to necessarily imply the existence of other legal staff in the practice.”  However, as did the Alabama General Counsel, this opinion further held that the use of “firm” or “law firm” by a solo practitioner is not inherently misleading under the D.C. Rules of Professional Conduct.
  •  South Carolina Bar Ethics Advisory Opinion05-19 (2005), found that an attorney engaged exclusively in the practice of governmental affairs and lobbying, and whose firm consisted solely of the attorney and two non-attorney employees, could not use the form “John Doe and Associates, P.A.” without violating Rules 7.5(a) and 7.1 because there was only one attorney in the firm.
  • Supreme Court Of Ohio Bd. of Commissioners on Grievances and Discipline Advisory Opinion 1995-1 (3 February 1995), decided under the former Code of Professional Conduct DR 2-102(B), found “It is improper for an attorney in solo practice to use the phrase ‘and Associates’ in the law firm name to indicate any of the following practice arrangements: that the attorney shares office space with other attorneys; that the attorney co-counsels with other attorneys; or that the attorney employs non-attorney support staff. The phrase ‘and Associates’ may be used in the law firm name if the attorney employs other attorneys.”

See also Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (Ohio 2001) (solo practitioner violated DR 2-102(B) by practicing as "Tom Furth Associates, Attorneys and Counselors at Law" when no other lawyers were associated with respondent).  Cf. Supreme Court of Ohio Bd. of Commissioners on Grievances and Discipline Advisory Opinion 2006-2 (10 February 2006) (proper for a solo practitioner to name his or her law firm “The X Law Group” where “X” is the solo practitioner’s surname and “X” actually employs one or more attorney as associates, but should not be used in a law firm name to refer to paralegals, other non-attorney personnel, office sharing attorneys, or “of counsel” attorneys).

Sonia Slips Up

Finally, lest one feel too smug about the ethical myopia of solo attorneys who, failing to heed the moral of Aesop’s The Frog and the Ox, attempt to inflate themselves through misleading monikers, legal blogger EricTurkewitz uncovered that no less a legal luminary than Sonia Sotomayor ran afoul of New York’s prohibition against solo lawyers employing “& Associates” if they are, in reality, an Army of One.  


Turkewitz noticed that, in responses to a questionnaire submitted to the Senate Judiciary Committee, Sotomayor responded to a question asking “whether you practiced alone, and if so, the addresses and dates” with “Yes, with Sotomayor & Associates . . . .”  Oops.  

Disclosed during her confirmation process, Sotomayor’s ethical gaffe created barely a tempest in a teacup, though the Obama White House was apparently sufficiently embarrassed that it sought to whitewash the blunder with a written rebuttal by Hal R. Lieberman, a former disciplinary committee chief counsel in New York.  Turkewitz properly called taurus excrementum on Lieberman’s exculpatory essay, and offered nominee Sotomayor far better counsel:

Forget that crap from Hal Lieberman about there being no rule and the ethics opinion being merely advisory. You are not before a court of law but the court of public opinion. The rules said you can’t mislead. You said you had associates and you didn’t. End of story. You screwed that up.
Touché Mr. Turkewitz on both the legal and political points.  Confession, and a good mea culpa, are good not only for the soul, but also in mitigation of discipline before most disciplinary regulators for such offenses.  After all, Sonia screwed up too.

Sonia’s unsuitable sobriquet, of course, did not derail her from becoming an “Associate” in the most exclusive “Law Group” in the country.  That said, solos lacking friends in high places, who do not wish to become members of the somewhat larger and less illustrious group of attorneys called out by regulators for publicly representing a legal singularity to be a synergy, should keep in mind and be comforted by the conventional wisdom that “clients hire lawyers, not firms.”  E pluribus unum.