Opinion 1883

[Editor's Note: the following is adopted as Formal Opinion 196]

Use of a Suspended/Disbarred Attorney’s Name in Firm’s Name and/or Business Communications is Prohibited

In 1984, Formal Opinion 178 was adopted which stated "misleading firm names are prohibited." The Board of Governors is of the opinion that further clarification is necessary with regard to suspended/disbarred attorneys and the ethical obligations of those attorneys who continue in practice after their colleague has been suspended/disbarred.

Formal Opinion 184 (issued 1990) provides a comprehensive discussion regarding employment of a disbarred lawyer.

RPC 7.1 prohibits a lawyer from "mak[ing] a false or misleading communication about the lawyer or the lawyer’s services." A communication is false or misleading if it "[c]ontains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading." RPC 7.1(a). Rule 7.5(a) prohibits a lawyer from using a "firm name, letterhead or other firm designation" that violates RPC 7.1 & 7.4.

Rule 8.4 indicates that professional misconduct includes "(c) engag[ing] in conduct involving dishonesty, fraud, deceit or misrepresentation . . . ."

For purposes of analysis, the suspension/disbarment removes the attorney from eligibility to practice law for a set time until readmission. Use of the suspended/disbarred attorney’s name while in that status differs little from the use of any non-lawyer’s name in the firm’s communications.

The active continued use of a suspended/disbarred attorney’s name in letterhead, correspondence, when answering phone calls, etc., lends to the possibility and probability of confusion on the part of the recipient of the message. While some forms of communication will be impractical to correct in a short period of time (e.g. yellow page advertising), any steps other than active removal of such misleading communications as soon as possible serves only to foster confusion and/or misrepresentation. Rules 7.1 and 7.5 are implicated.

While practically, the impact upon the firm might be significant both financially and otherwise, any practice other than active removal of the information will violate the ethical guidelines.

The Rules for Lawyer Discipline address the issue at RLD 1.1(h):

A lawyer may be subjected to the disciplinary sanctions for actions set forth in these rules for any of the following:

(h) Practicing law with or in cooperation with a disbarred or suspended lawyer, or maintaining an office for the practice of law in a room or office occupied or used in whole or in part by a disbarred or suspended lawyer, or permitting a disbarred or suspended lawyer to use his or her name for the practice of law, or practicing law for or on behalf of a disbarred or suspended lawyer, or practicing law under any arrangement or understanding for division of fees or compensation of any kind with a disbarred or suspended lawyer.

Further, Formal Opinion 184 (1990) sets forth an analysis of when an attorney can be subject to disciplinary sanctions under RLD 1.1(h), which includes ". . . permitting the disbarred or suspended lawyer to use his or her name for the practice of law. "

The name of the suspended/disbarred attorney shall be removed from firm letterhead, firm advertisements, firm contracts, telephone answering, e-mail communications, brochures, web sites, and the like. This prohibition shall continue until such time as the suspended/disbarred attorney has been reinstated as a licensed member of the Bar.