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ETHICS OPINION 677-1990 TOPIC: FIRM NAME
NEW YORK COUNTY LAWYERS’ ASSOCIATION
Committee on Professional Ethics
QUESTION NO. 677
TOPIC: FIRM NAME
DIGEST: A firm name may not consist of the first name of one partner and a contraction of the surname of another partner. Even if such name is not misleading and the full names of both partners appear on all communications of the firm, use of the name would violate the requirements that lawyers practice only under the names of lawyers in the firm.
CODE: DR 2-102(B), EC 2-11.
QUESTION: May a law partnership use as a firm name the first name of one partner and a contraction of the surname of another partner?
OPINION:
Two lawyers of foreign origin have names that they believe are difficult for their clients and potential clients to pronounce. However, they are commonly known by simpler names. They would like to practice under a firm name comprised of the other names. In one case, the name is the lawyer’s first name; in the other, a contraction of the lawyer’s last name. (For purposes of illustration, assume that the first lawyer is named Jerzy Yacztrezemki and is known as “Yaz”. The second lawyer is named Alexander Sabatacakis, and is known as “Alexander”. They propose to call their law firm “Alexander & Yaz”. These are not the real names of the inquirers.]
DR 2-102(B) states:
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. . . .
Similarly, EC 2-11 states:
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 of 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 . . . .
These provisions contain two prohibitions: (l) a lawyer may not practice under a trade name, and (2) a lawyer may practice only under a designation containing the lawyer’s own name or the names of one or more of the lawyers in a partnership. Although we do not believe the proposed firm name would constitute a trade name, we believe DR 2-102(B)’s requirement that the firm name contain only the lawyers’ own names refers to their own last names. In our opinion, there are ways for the lawyers to resolve the problem of their difficult names that are more in keeping with the letter and spirit of the disciplinary rule than the proposal made to us.
The Prohibition Against Trade Names
We believe that a “trade name”, as prohibited by the Code, is a word or phrase other than the lawyer’s name that might mislead the public as to the identity of the lawyers practicing in the firm. See In re Conduct of Shannon, 638 P.2d 482 (Or. 1982). Thus, the trade names that have been held improper in this state are names that are not a variant of the names of the lawyers practicing in the firm. See Matter of Shapiro, 90 A.D.2d 22 (1st Dep’t 1982)(use of the name “People’s Legal Clinic, Inc.” is improper); Matter of Shepard, 92 A.D.2d 978 (3rd Dep’t 1983)(use of the name “The People’s Law Firm of Jan L. Shepard is improper since it implies that the firm is publicly supported or provides free legal services). But see Matter of Von Wiegen, 63 N.Y.2d 163, 173-77 (1984)(using the motto “The Country Lawyer” was not improper when the lawyer’s own name was inserted in addition to the motto, because there was no potential for deception about the identity of the lawyer in question.)
In Friedman v. Rogers, 440 U.S. 1 (1979), the Supreme Court upheld a ban on the trade name “Texas State Optical”, because it found a significant possibility that trade names could be used to mislead the public. For example, the trade name might remain unchanged despite changes in the staff of optometrists upon whose skill and care the public relied in patronizing the practice. In addition, the use of the trade name would free optometrists from dependence on their personal reputation to attract clients, and allow them to assume new trade names if negligence or misconduct became associated with the old name.
In this case, the name that identifies each partner in the firm name is not his full name, however, it is a part of his name and is a name by which he is actually known. Moreover, the simplified names are so distinctive that the public should not be misled as to the identify of the lawyers. Consequently, the potential for deception identified by the Court in Friedman v. Rogers is not present. This might not be the case with more common names. For example, “The Law Firm of Jim & Bob”, while desirably folksy, might well be misleading, even if the two partners of the firm were actually named Jim and Bob. However, we believe the use of the simplified names in the case presented to us is no more misleading as to the name of the persons practicing in the firm than the use of the name Sullivan & Cromwell to describe the practice of that venerable firm. See DR 2-102(B), N.Y. State 279 (1983)(firm may include in its name the names of one or more deceased or retired partners of the firm or of a predecessor firm in a continuing line of succession). This is especially true since the lawyers would indicate their full names on all written material provided to the public, such as letterhead, business cards, billing stationery and advertisements.
Practicing under the Name of the Lawyer
Nevertheless, although the proposed firm name, used as proposed, would not be misleading, it nevertheless runs afoul of the Code’s requirement that a lawyer practice only under a designation containing the lawyer’s own name, the name of an employing lawyer or in the name of one or more lawyers practicing in a partnership. We believe that this requirement refers to legal surnames. Thus, the fact that the lawyers are commonly known by the names in the proposed firm name is irrelevant. While we would not be offended if the rules were changed to permit the use of firm names of the type here proposed, we believe it is up to the Appellate Divisions, and not this Committee, to change the current rule.
Alternatives to Altering the Firm Name
The inquirer has represented that one reason for the proposed firm name is to avoid problems of pronunciation. We believe there are several ways to avoid this problem without resorting to a firm name that does not include the actual surnames of the partners. One way is to use an explanation along with the firm name. For example:
Law Offices of Sabatacakis & Yacztrezemki
(also known as Alexander & Yaz)
Such an explanation is no more objectionable than the motto “the Country Lawyer” approved in von Wiegen. Moreover, if the firm name appeared in this fashion in all public communications, we would not object to the firm’s phones being answered “Alexander and Yaz”, since we do not find such an informal designation to be misleading in that context.
Another possibility would be to list the simplified names of the lawyers in the listing of their names below the partnership name, e.g. Jerzy (“Yaz”) Yaztrezemki.
CONCLUSION:
For the reasons set forth above, a firm name may not consist of the first name of one partner and a contraction of the surname of another partner. Even if such name is not misleading and the full names of both partners appear on all communications of the firm, use of the name would violate the requirements that lawyers practice only under the names of lawyers in the firm. However, there are other ways for the lawyers to indicate to clients and potential clients that they are known by variants of their legal names.
March 30, 1990