94 N.J.L.J. 1206
December 23, 1971
Firm Name - In Name of One Partner
An advisory opinion is requested with respect to the use of a
firm name in a proposed partnership to become effective January 2,
1972. It is proposed that the firm use as its name alternates of
the following (1) "The Firm of John Smith"; (2) "John Smith &
Associates." The inquirer states that the letterhead and all
announcements will include names of members of the firm, and
separately the names of the associates. The reason for the choice
of the firm name is based upon the fact that because of preference
the office has voluntarily limited its practice to representation
of financial and creditor corporations, rarely accepting
representation in other matters, and has over the years established
a reputation which attracts clients of that nature, who know the
office as the firm of John Smith. It is in anticipation, and the
hope, that such attraction would continue to the benefit of the
firm that this choice of firm name has been made.
Disciplinary Rule 2-102(B) adopted by the New Jersey Supreme Court, effective September 13, 1971, now provides:
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 a professional corporation or professional association shall comply with the laws of the State of New Jersey and the Rules Governing the Courts of the State of New Jersey, indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.
The question of the use of firm names with such appendages has been exhaustively covered in A.B.A. Committee on Professional Ethics, Opinion 318 (1967). The benchmark for decision is that the name be not misleading. Originally, the use of the word "associates" in a partnership name was thought to be objectionable since it denoted mere employment and not partnership. Drinker, Legal Ethics 207 (1953), A.B.A. Committee on Ethics and Professional Responsibility, Informal Opinions A-373 (1960) and A-374 (1960), referred to in Opinion 318, but since the early 1960's the concept of a "professional corporation" or "professional association" has gained popularity and a number of states, including New Jersey, have adopted statutes legalizing such professional associations. R. 1:21-lA now allows the formation of professional corporations for the practice of law in New Jersey.
Accordingly, A.B.A. Committee on Professional Ethics, Opinion 310 (1963) sanctioned the use of the term "and Associates" in conjunction with an individual or partnership name where employed attorneys conduct a portion of the firm's legal business provided that the names of all partners and the names of all associates are shown on the letterhead. The use of a name such as "Firm of A. B. Smith" had been previously approved, Drinker, Legal Ethics 207 (1953), provided the same listings are followed.
Although the inquirer notes that he has never seen this type of firm name used in New Jersey, local custom is not referred to in the new Disciplinary Rule. Accordingly, we see no ethical objection to the use of the proposed name provided that the inquirer remain in active practice and that the letterhead and other permissible listings clearly disclose who are in fact members of the firm and who are associates.
Of course, our approval would not apply if the lawyers were merely practicing law together and sharing office space and expenses, but supposes that there is in fact sharing of responsibility and liability by all members of the firm. If this is not the case, the name would be misleading and improper.