Must a law firm remove a suspended attorney's name from its letterhead and firm name while the suspension is in effect?

Plain-English summary

Bar Counsel asked whether the Bar Rules require deleting the name of a suspended attorney from the name and letterhead of the firm with which the attorney is affiliated. The Commission concluded they do, and that the firm must drop the suspended lawyer's name from all public communications, including the letterhead, until the lawyer may resume practice.

The Commission noted that, unlike the former ABA Model Code (DR 2-102(b)) and the Model Rules (Rule 7.5), the Maine Bar Rules contain no provision directly addressing the content of a firm name. Maine Bar Rule 3.9(a) instead prohibits any public communication, a category that includes letterheads and the firm name, that contains "a false, fraudulent, misleading, or deceptive statement or claim," and Rule 3.9(b) defines prohibited statements to include those that omit a material fact necessary to keep the statement from being misleading, create an unjustified expectation, or contain a representation or implication likely to cause an ordinarily prudent person to misunderstand.

Drawing on Grievance Commission Opinion 13, which addressed retaining a public official's name in a firm name, the Commission reasoned that continued use of a suspended lawyer's name likewise violates Rule 3.9. There is little danger that clients would think the firm has influence in high places, but there is a risk the public will perceive the disciplinary process as lacking force if a suspended lawyer appears to continue sharing in the firm's work, profits, and prestige, and a risk that clients will think the suspended lawyer still shares responsibility for the firm's debts and malpractice. The Commission concluded that continued use therefore violates Rule 3.9(b)(2) and at least carries an implication likely to cause an ordinarily prudent person to misunderstand, which alone makes it a violation where the name appears in a firm's public communication in a way suggesting the suspended lawyer enjoys a relationship comparable to that of a retired partner.

Currency note

This opinion was issued in 1993, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Must a firm remove a suspended lawyer's name from its letterhead?

A: The opinion concluded yes. It held Rule 3.9(b) requires dropping the suspended lawyer's name from all of the firm's public communications, including the letterhead, until the lawyer may resume practice.

Q: Why did the Commission treat keeping the name as misleading?

A: The opinion reasoned that retaining the name risks making the public perceive the disciplinary process as lacking force and risks suggesting the suspended lawyer still shares responsibility for the firm's debts and malpractice, contrary to Rule 3.9(b)(2).

Q: Did the Maine rules have a specific firm-name provision like the Model Rules?

A: No. The opinion noted that, unlike the Model Code and Model Rule 7.5, the Maine Bar Rules had no provision directly addressing firm-name content, so the analysis ran through the general ban on misleading public communications in Rule 3.9.

Background and rules framework

The opinion interprets Maine Bar Rule 3.9(a), which bars false, fraudulent, misleading, or deceptive public communications (a category that includes letterheads and firm names), and Rule 3.9(b), which enumerates prohibited statements including those omitting a material fact or carrying a misleading implication. These correspond to ABA Model Rule 7.1 (communications concerning a lawyer's services) and Model Rule 7.5 (firm names and letterheads).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 (communications about a lawyer's services); Model Rule 7.5 (firm names and letterheads); former Model Code DR 2-102(b)
• Maine Bar Rule 3.9(a), 3.9(b), 3.9(b)(2)

Other opinions cited:

• Maine Grievance Commission Opinion 13: retaining a public official's name in a firm name

See also

• Maine Ethics Op. 175: Solo Practitioner Also Of Counsel to Another Firm
• ABA Formal Op. 90-357: Use of "Of Counsel" Designation
• ABA Formal Op. 95-391: Former Judge Using the Title "Judge"

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=89832

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: April 12, 1993

Question

The Professional Ethics Commission has been asked by Bar Counsel whether the Bar Rules require deletion of the name of an attorney who has been suspended from practice from the name and letterhead of the law firm with which the attorney is affiliated.

Answer

The Commission had concluded that the Bar Rule 3.9(b) requires dropping the name of the suspended attorney from all "public communications" of the law firm with which he is affiliated, one of which is the firm letterhead, until such time as the attorney has been authorized to resume the practice of law.

Opinion

Unlike the former ABA Model Code of Professional Responsibility and the present Model Rules of Professional Conduct, the Maine Bar Rules contain no provision directly addressing the content of a law firm name. The Model Code of Professional Responsibility contained fairly detailed instructions in DR2-102(b), one of which prohibited practice under a firm name containing names "other than those of one or more of the lawyers in the firm", subject to an exception permitting names of "deceased or retired members of the firm", if otherwise lawful. The Model Rules, somewhat closer to the Maine Rules, prohibit the use of any law firm name that would violate the general ban on false or misleading public communications. Model Rule 7.5(a). Like the Model Code, however, Model Rule 7.5(c) expressly prohibits continued use in a firm name of the name of the lawyer who has been elected or appointed to public office unless the simultaneous practice of law is permissible.

Maine Bar Rule 3.9(a) prohibits in general terms the use of any form of public communication containing "a false, fraudulent, misleading, or deceptive statement or claim." The rule explains that the term "public communication" includes letterheads and therefore the name of the firm. Rule 3.9(b) defines the prohibited statements as including, among others, any statement that:

(2) omits to state any material fact necessary to make the statement, in light of all circumstances, not misleading; (3) is intended or is likely to create an unjustified expectation; **** (5) is intended, or is likely to convey the impression that the lawyer is in a position to influence improperly any court, tribunal, or other public body or official; or (6) contains a representation or implication that is likely to cause an ordinary prudent person to misunderstand. . . .

Opinion 13 of the Grievance Commission, this Commission's forerunner in issuing advisory opinions interpreting the Code of Professional Responsibility, explained the reasons why, and circumstances under which, a violation of Rule 3.9 could arise out of retaining the name of a lawyer who had been appointed or elected to public office in a firm name.

In the opinion of the Commission continued use of the name of a lawyer suspended from the practice of law is likewise a violation of Rule 3.9. Unlike use of the name of a public official, there seems little danger that prospective clients would think the firm had influence in high places if it continues use of a suspended lawyer's name. There is, however, a risk that the general public will perceive the disciplinary process as somewhat lacking in meaning, or in force, if appearances suggest that a suspended lawyer continues to participate in the work, the profits, and the prestige of a law firm, as if nothing has happened. There is also a risk that clients and potential clients will think that the suspended lawyer continues to share responsibility for the debts of the firm and for its malpractice, if any. Such continued use of the lawyer's name therefore violates Rule 3.9(b)(2). It seems quite clear that continued use of the name contains at least an "implication that is likely to cause an ordinary prudent person to misunderstand". This alone would make continued use of the name a violation. In the commission's opinion, that would be the case if the suspended lawyer's name appeared anywhere in a public communication of the firm in a manner that, from its appearance or from nondisclosure, suggests that the suspended lawyer enjoys a relationship with the firm comparable to that of a retired partner.