Summary: Given the wide use of the designation "A, B, C, & D, a professional association" by lawyers who are not partners and given the past reference to use of the term "P.A." in the Disciplinary Rules, the committee declines to advise that the use of "professional association" to describe lawyers who share office space but are not partners is deceptive, although it is doubtful, because of the uncertain meaning of those words, that using them avoids the implication of a partnership-like arrangement that is created by the use of the form "A, B, C & D."
Facts: A group of lawyers who share the expense of office space, a secretary and an associate, but do not share fees and have no partnership arrangement wish to know whether it may adopt the name "A, B, C & D, a Professional Association" and use stationery listing the attorneys' names in a column on the left.
Discussion: We approach this question with the full realization that we are giving advice with respect to the way many lawyers practice in this commonwealth. The guiding disciplinary rules, DR 2-101(A) and DR 2-102(A), preclude the use of a deceptive statement or claim in advertising in general and in professional notices in particular. The issue then is whether use of the name, "A, B, C & D, a Professional Association" by lawyers who share expenses but not profits and are not partners is deceptive. The issue is not the legal issue whether practice under that style may subject the lawyers to liability as partners. That is a question of substantive law as to which this committee has no jurisdiction.
In Opinion 76-19 we quoted from ABA Opinion 310 in stating how a group of lawyers such as those described in this inquiry could publicize themselves without creating a misleading impression that they were in fact partners. "Each lawyer should use separate stationery, with his own name and not that of a firm on it. He should not join his name with others on cards, in law lists, or telephone directories. The door of the group, when otherwise appropriate, may contain the names of the persons practicing therein no more closely connected than the following example:
Charles R. Jones
Peter S. Smith''
This inquiry in effect asks whether the concern expressed in Opinion 76-19 would be met if the names of affiliated lawyers are joined together in partnership style, but the words "a Professional Association," are added immediately thereafter. Unlike the term "partnership" the words, "professional association" do not have any accepted legal meaning. Many different types of legal organizations might be comprehended under that description and it is conceivable to us that a legal partnership could be so described. Nevertheless we should also recognize that between 1972, when the Model Code of Professional Responsibility was adopted by the Supreme Judicial Court, and 1979, when DR 2 was amended by the Supreme Judicial Court, DR 2-102(B) provided that
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 may contain 'P.C.' or 'P.A.' or similar symbols indicating the nature of the organization ... .
This provision was copied exactly from the Model Code of Professional Responsibility as adopted by the ABA in 1970. There is no legislative history to indicate what the drafters understood by the terms "professional association" and "P.A." and we have not been able to find any exposition of those terms in ethics opinions of other committees although, given the poor state of reporting of such decisions, it is possible that some opinions do exist. Some ethics committees, however, have addressed efforts by lawyers who practice together to avoid the general rule that they may not use a partnership style name. The Iowa committee gave some examples of forms of names that would avoid the implication that a partnership existed. Two examples were "A, B, & C, Not a Partnership" and "A, B, & C, An Association of Sole Practitioners." 39 News Bull. Iowa State Bar Ass'n 4 (Jan. 1979). The first example was the subject of an opinion by the Nebraska committee, which advised that it was not a permissible form of name because it was not practicable to use the whole form every time the "firm" name was mentioned. No. 80-10, ABA/BNA Lawyers' Manual on Professional Conduct 801:5502. Both opinions are from committees in states that still have DR 2-102(B) in its original form as quoted above. Nevertheless, neither one suggested that "a professional association" following a partnership-style name was permissible.
Whatever the effect of the reference to ''professional association" in our rules of professional responsibility between 1972 and 1979, the amendments adopted by the Supreme Judicial Court in 1979 removed the reference. We do not believe that any specific purpose should be read into that deletion other than the effort to replace the former specific rules with a comprehensive standard of "deceptive statement or claim." Thus we end where we began, with the necessity to decide, without much help from legislative history or other ethics opinions, whether the addition of the words "a professional association" avoids the implication of a partnership or partnership-like arrangement created by use of the form "A, B, C & D." Given the uncertain legal meaning of the words "professional association," we are quite doubtful that it does. (See also our Opinion 77-14, which advised that a partnership that turned itself into a professional corporation could continue to use its former partnership name because the fact of common personnel, files, and business ties comported with the appearance.) Nevertheless, given the former reference to the possibility of using such terminology in our disciplinary rules and the widespread use of the term by law firms in the commonwealth, we are reluctant to issue an opinion, even though an advisory one, that it is deceptive. We do believe, however, that the matter is of sufficient importance to so many lawyers in the commonwealth that someone with official status, perhaps the Office of Bar Counsel, perhaps the Rules Committee of the Supreme Judicial Court, should take an official interest in this question.
Permission to publish granted by the Board of Delegates on May 31, 1985. As stated in the Rules of the Committee on Professional Ethics, this advice is that of a committee without official governmental status.