Can two separate law firms describe themselves as affiliated or associated on their letterhead without misleading the public?

Plain-English summary

The Committee revisited KBA E-299, in which it had rejected a "common firm name" for an "umbrella firm" of three separate offices that were not in fact partners. It reaffirmed that holding, which simply prohibits a lawyer from holding himself out as a partner or associate of another lawyer when that is not the case, and distinguished a seemingly contrary New Jersey Opinion 383 as a special case involving a registered group legal services arrangement.

The opinion noted, however, that the phrasing of KBA E-299 suggested that separate firms or attorneys may never hold themselves out as otherwise associated or affiliated, a finer distinction addressed by ABA Formal Opinion 84-351, which was released but not generally available while E-299 was being prepared. ABA Formal Opinion 84-351 permits communications about the "affiliation" or "association" of firms so long as: the relationship between the firms is close and regular, and not merely that of forwarder-receiver of legal business; the affiliate is available to the other firm and its clients for consultation and advice; and the firms recognize that they are associates for purposes of the conflict-of-interest rules. The Committee accepted ABA Formal Opinion 84-351 as a reasonable modification of the prohibition stated in KBA E-299.

Currency note

This opinion was issued in 1986 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can Kentucky firms say on letterhead that they are affiliated or associated?

A: Under this opinion, yes, where the conditions of ABA Formal Opinion 84-351 are met, even though firms that are not partners still may not use a common firm name under KBA E-299.

Q: What conditions must the affiliation meet?

A: The opinion adopted ABA 84-351's three conditions: a close and regular relationship (not merely forwarder-receiver), the affiliate's availability for consultation and advice, and recognition that the firms are associates for conflict-of-interest purposes.

Q: Does this overrule KBA E-299?

A: No. The opinion reaffirmed E-299's bar on a common firm name for non-partners and treated ABA 84-351 only as a reasonable modification of E-299's broader implication about affiliation language.

Background and rules framework

The opinion applied the former Code's firm-name and holding-out provisions, DR 2-102(B) and (C) and EC 2-13, as refined by ABA Formal Opinion 84-351. The modern analogs are Model Rule 7.5 (firm names and letterheads) and Model Rule 7.1 (no false or misleading communications). The analysis turned on whether an "affiliation" or "association" designation is truthful and backed by a real, conflicts-aware relationship.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B); DR 2-102(C); EC 2-13 (former Code)
• MR 7.5 (firm names and letterheads); MR 7.1 (communications about services)

Other opinions cited:

• ABA Formal Op. 84-351: conditions for advertising firm affiliation or association
• KBA E-299 (refined by this opinion); KBA E-62; KBA E-259; New Jersey Op. 383 (distinguished)

See also

• KBA Ethics Op. E-299: Umbrella Firm Name
• KBA Ethics Op. E-320: Shared Office Nameplate

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-311.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-311
Issued: January 1986

This opinion was decided under the Code of Professional Responsibility, which was in
effect from 1971 to 1990. Lawyers should consult the current version of the Rules of
Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org),
especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before
relying on this opinion.

Question:

Does the Code of Professional Responsibility prohibit the designation on letterhead of
one firm as affiliated or associated with another, as long as the relationship between the
firms is such that the communication is not false and misleading and the law firms
adhere to the applicable rules regulating disclosure of confidential information and
conflicts of interest as if they were a single firm?

Answer:

No.

References:

ABA Formal Op. 84-351; KBA E-299, DR 2-102(B)(C); EC 2-13.
OPINION

In KBA E-299, an attorney proposed the use of a "common firm name" for an "umbrella firm"
consisting of three separate offices with shared facilities in which there would be no sharing of fees or
reciprocal financial responsibility. We rejected the use of such a "common firm name", which is
consistent with the above cited DRs, as well as KBA E-62 and E-259, distinguishing a seemingly
contrary opinion, New Jersey Opinion 383, as a special case involving a registered group legal services
arrangement. We continue to adhere to that opinion, since it simply prohibits a lawyer from holding
himself out as a partner or associate of another lawyer when that is not, in fact, the case.
On the other hand, the phrasing of the question and answer in KBA E-299 suggests that
"separate" firms or attorneys may never hold themselves out as being otherwise associated or affiliated.
The rather fine distinction presented in the above question was addressed by the ABA in Formal
Op. 84-351 which was released but was not generally available during the period of time that KBA
E-299 was being prepared.
ABA Formal Opinion 84-351 permits communications as to the "affiliation" or "association" of
firms, so long as:
(1)
the relationship between the firms is 'close and regular, and not merely that of
forwarder-receiver of legal business";
(2)
the "affiliate" is available to the other firm and its clients for consultation and advice;
and
(3)
the firms recognize that they are "associates" for purposes of conflicts of interest
rules.
We accept ABA Formal Opinion 84-351 as a reasonable modification of the prohibition set forth
in KBA E-299.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar
Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The
Rule provides that formal opinions are advisory only.