Opinion 495

Opinion 495

10.12.1978

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #495 – 10/12/1978 (46-78)

Topic: Firm name; professional corporation; branch office
Digest: Lawyers operating as professional corporation may not maintain branch office in associate’s name
Code: EC 1-5, 2-11, 2-13, 6-6; DR 1-102(A)(4), 2-102(B), 7-102(A)(8)

QUESTION

A group of lawyers are practicing as a professional corporation under the name “John Doe, P.C.” and wish to open a branch office in another part of town. The branch will be staffed by Richard Roe, a lawyer-employee of the corporation, having no equity interest therein, who was at no time a partner of any predecessor firm.Under the circumstances stated, may the corporation open a branch office in the name “Law Firm of Richard Roe”?

OPINION

While it is not the function of this Committee to resolve issues of law, an appropriate response to the question posed requires us to observe initially that Section 1512 of the Business Corporation Law forbids a professional corporation to use any word in its title that could not be employed by a partnership engaged in the profession which the corporation is authorized to practice. Generally, conduct which is illegal is considered to be unethical. See, EC 1-5, DR 1-102(A)(4) and DR 7- 102(A)(8); see also, N.Y. State 328 (1974). Thus, if Section 1512 operates to forbid the use of the name Richard Roe as a matter of law, its use would also be unethical.Even if the proposed firm name were not illegal, we believe that under the circumstances stated, its use would be misleading and therefore inconsistent with those provisions of the Code of Professional Responsibility bearing upon firm names. See, EC 2-11, EC 2-13, and DR 2-102(B); see also, N.Y. State 445 (1976).As explained in EC 2-11:”The use of a trade name or an assumed name could mislead non-lawyers concerning the identity, responsibility and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under a designation containing the lawyer’s own name, the name of an employing lawyer, the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional corporation for the practice of law, which should be clearly distinguished as such …..”To the sane effect is DR 2-102(B) which provides in pertinent part:”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, except. that the name of such a professional corporation may contain ‘P.C.’ or such symbols permitted by law…”Although a law firm is not prohibited from establishing a branch office (ABA Inf. 959 [1966]; ABA Inf. 1082 [1968]), its existence cannot be used as a vehicle for deception. If there is no true relationship analogous to that of partners between the firm’s stockholders and the lawyer who is intended to staff its branch office, the use of that lawyer’s name for the branch office would be misleading. The relationship to be analogous to that of a true partnership must include a genuine sharing of profits, liabilities and professional obligations. Cf., N.Y. State 175 (1971) (explaining the elements of a genuine partnership) with N.Y. State 231 (1972) and N.Y. State 344 (1974) (holding that a lawyer may be a partner of more than one firm under certain conditions).Richard Roe has never enjoyed a status analogous to that of partner in John Doe, P.C. or in any predecessor firm. Rather, his status is analogous to that of an associate or mere lawyer-employee. As such Richard Roe does not share in the profits, liabilities and professional obligations of the corporation to the same extent as those persons who are actually directing its practice and who in fact will have supervisory authority and control over his actions. Cf., EC 6-6 with Business Corporation Law § 1505 (“professional relationships and liabilities”). Clearly, absent any considerations owing to the corporate form in which his employers have elected to practice, Richard Roe’s name could not appear in the firm’s title. See, DR 2-102(B). Notwithstanding the corporate context of the question posed, we believe that Richard Roe’s subordinate position is still of critical importance and precludes the use of his name for the firm’s branch office.For the reasons stated, the question posed is answered in the negative.