Ethics Opinion 175

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #175 – 03/01/1971 (26-70)

Topic: Firm Name; Out-of-State Members
Digest: Whether the name of out-of-state members may be included in the firm name depends upon the facts of each case
Code: DR 2-102(D) EC 2-11, 3-9

QUESTION

May a multi-state law firm use for its New York office a name composed of one or more partners who are not admitted to practice in the State of New York?

OPINION

DR 2-102(D) provides:”A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction.”Partnerships may properly be formed among lawyers admitted to practice in different states, but the name used by such a firm must not be misleading.  N.Y. State 144 (1970); N.Y. City 684 (1946); N.Y. City 700 (1946); ABA 316 (1967).Prior to the adoption of the Code it had been repeatedly held that the inclusion in the firm name of one never admitted to practice in New York would be improper. N.Y. City 684 (1946); N.Y,. City 698 (1946); N.Y. City 700 (1946); N.Y. City 749 (1950); N.Y. City 786 (1954); N.Y. County 182 (1920); N.Y. County 426 (1954); ABA Inf. 830 (1965); ABA Inf. 1059 (1968); ABA 318 (1967); cf. N.Y. City 721 (1946).One reason for this rule was stated in Drinker, Legal Ethics 205 (1953) as follows:”The partnership name may not include that of one not locally admitted, despite explanatory statements on the letterhead, shingle, etc., since the name used where no such explanation accompanies it, would imply that all the named partners were locally admitted.”In view of the language of DR 2-102(D), it is the Committee’s opinion that a multi-state law firm practicing in New York may use the same name as in other states provided the circumstances are not such as to cause local use of the name to be misleading. Cf. EC 2-11.At the same time, a multi-state law firm should not be allowed to grant local lawyers the right to use the firm name on a basis analogous to a franchise.  A law firm may not license its name.  Also, if there is no true partnership relationship with the local lawyer with a real sharing of profits, liabilities and professional responsibility, use of an out-of-state lawyer’s name in the firm name would be misleading.To avoid the danger of franchising and the risk of misleading the public, the Committee is of the opinion that a multi-state law firm may not use in New York a name composed of one or more lawyers not admitted to practice in New York unless the local lawyer is a true partner with a real share in the over-all profits, liabilities and professional responsibilities of the entire firm.

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