Advisory Opinion: 196

Year Issued: 2000

RPC(s): FO 178, FO 184, RPC 7.1, 7.5, 8.4, 5.8(b)

Subject: 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 "contains 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. Rule 7.5(a) prohibits a lawyer from using a "firm name, letterhead or other professional designation" that violates RPC 7.1.

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. RPC 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.

RPC 5.8(b) provides:

A lawyer shall not engage in any of the following with an individual who is a disbarred or suspended lawyer or who has resigned in lieu of disbarment:

(1) practice law with or in cooperation with such an individual;
(2) maintain an office for the practice of law in a room or office occupied or used in whole or in part by such an individual;
(3) permit such an individual to use the lawyer's name for the practice of law;
(4) practice law for or on behalf of such an individual; or
(5) practice law under any arrangement or understanding for division of fees or compensation of any kind with such an individual.

The name of the suspended/disbarred attorney shall be removed from firm letterhead, firm advertisements, firm contracts, telephonic communications, 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.

[amended 2009]

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.