UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 05-19
RULES 1.0(d), 5.7, 7.1, 7.5, and 8.5(c)
Facts
An attorney, who is engaged solely in the practice of governmental affairs and lobbying, decides to open a governmental / lobbying firm. The firm consists of the attorney and two non-attorney employees. He wishes to name the firm “John Doe and Associates, P.A.” This name is supposed to appear on firm letterhead and other firm materials. Below the name of the firm, the letterhead also reads “Public and Governmental Affairs.” Nothing in the letterhead, or any other materials, denotes that the firm is engaged in any type of legal work other than lobbying and governmental affairs.
The firm wishes to place the names of the two non-attorney employees on the firm’s letterhead. It is proposed that the names will be separated from the name of the attorney and an asterisk will be placed beside the names of the two non-attorney employees. At the bottom of the letterhead, a note will read as follows: “Denotes employees who are not attorneys.”
Questions:
Is the use of the name “John Doe and Associates, P.A.” acceptable?
Is this letterhead acceptable?
Summary – Question # 1
No. If John Doe is practicing law or holding himself out as an attorney, under the facts described above, the use of the name “John Doe and Associates, P.A.” would be misleading and hence, violative of Rule 7.5(a) since there is only one attorney in the firm. Also, John Doe would be advised to consider Rules 5.7 and 8.5(c), which may be applicable to the facts above.
Summary – Question # 2
Yes, provided that the name of the firm is changed to delete “and Associates,” the letterhead would be acceptable, as long as it clearly delineates the non-lawyer employees as such.
Opinion – Question # 1
As defined in Rule 1.0(d), “Firm” or “Law Firm” denotes “… lawyers associated with an enterprise who represent clients within the scope of that association.” Hence, the fact that the lawyer may not be providing traditional legal services does not take him outside the scope of the Rules of Professional Conduct. See also Rules 5.7 and 8.5(c).
Rule 7.5(a) reads “A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1.” Rule 7.1 reads, in relevant part, “A lawyer shall not make false, misleading, deceptive, or unfair communications about the lawyer or the lawyer’s services.” The use of the name “John Doe and Associates, P.A.” is misleading (and therefore violates Rules 7.5(a) and 7.1) because it implies that there is more than one lawyer in the firm, when, in fact, there is only one. See In re Mitchell, 364 S.C. 606, 614 S.E.2d 634 (2005). Arguably, a violation of Rule 7.5(d) also exists, “Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.”
Opinion – Question # 2
Rule 7.5 does not prohibit letterhead references to non-attorney employees; however, if such references are misleading, then a violation of both Rule 7.5(a) and Rule 7.1 ensues. Subject to the foregoing opinion as to Question 1, requiring the name of the firm to be changed to delete “and Associates,” the letterhead described above would be acceptable as long as the delineation of non-attorney employees is clear and not misleading.