Can two solo lawyers who only contract with each other for overflow work hold themselves out on letterhead as an association of professional corporations?

Plain-English summary

Two lawyers using stationery reading "Smith & Jones, a partnership including professional corporations" were not actually partners. Smith practiced as "Smith, P.C." and Jones as a separate P.C.; they merely contracted with each other to perform legal services for some of each other's clients. They asked whether they could practice as "Smith & Jones, an association of professional corporations."

The opinion concluded they could not. While Michigan permits professional corporations to join together as a partnership to practice law (CI-154), the committee had repeatedly held it impermissible for lawyers to appear to practice as partners when no partnership exists (CI-1, CI-111, CI-298). MCPR DR 2-102(B) barred misleading firm names, and MCPR DR 2-102(C) barred holding oneself out as having a partnership unless the lawyers are in fact partners. The opinion reasoned that "Smith & Jones" standing alone implies a partnership, and adding "an association of professional corporations" does little to dispel that, since "associate" historically denotes a firm's junior lawyers and "association" implies some corporate or partnership structure beyond the parties' mere contractual arrangement. Citing the treatment of unincorporated associations in American Jurisprudence and Friedman v. Rogers (upholding a state's power to ban trade names to protect the public), the opinion concluded the proposed name, though not inherently misleading, was misleading because it would create the perception that Smith and Jones were partners. It found the arrangement would violate MCPR DR 2-102 and noted the ABA Model Rule 7.5(a) and proposed Michigan Rule 7.5(d) principle that lawyers may state or imply they practice in a partnership only when that is the fact.

Currency note

This opinion was issued in 1983 under the former Michigan Code of Professional Responsibility (MCPR), which the Michigan Supreme Court replaced with the Michigan Rules of Professional Conduct effective October 1, 1988, and amended further thereafter. The disciplinary rule it construes (MCPR DR 2-102) is no longer in force; the firm-name principle now appears in MRPC 7.5 and the misleading-communication bar in MRPC 7.1. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can two solo lawyers who share overflow work call themselves a firm or association?

A: The opinion concluded no, where they are not partners or a single professional corporation; a name implying a partnership or unifying structure that does not exist is misleading.

Q: Does adding "an association of professional corporations" fix the problem?

A: No. The opinion concluded that phrase does little to remove the impression of partnership, because "association" implies a corporate or partnership structure beyond a mere contractual arrangement.

Q: Can professional corporations ever combine to practice law in Michigan?

A: Yes. The opinion noted that professional corporations may join together as a partnership to practice law (CI-154); what is impermissible is implying a partnership where none exists.

Background and rules framework

The opinion applied MCPR DR 2-102(B) and (C) on firm names and holding out a nonexistent partnership, the predecessors of today's Michigan rules (the analogues of Model Rules 7.5 on firm names and 7.1 on misleading communications). It relied on prior committee opinions (CI-1, CI-111, CI-154, CI-298) and on Friedman v. Rogers.

Citations and references

Rules of Professional Conduct (as cited):

• MCPR DR 2-102(B) (misleading firm names)
• MCPR DR 2-102(C) (holding out a partnership that does not exist)

Cases:

• Friedman v. Rogers, 440 U.S. 1 (1979), a state may ban trade names to protect the public

Other opinions cited:

• Michigan CI-1, CI-111, CI-298: appearing to practice as partners without a partnership
• Michigan CI-154: professional corporations joining as a partnership

See also

• Mich Ethics Op. RI-144: firm name implying a partnership
• Mich Ethics Op. RI-102: "of counsel" designation between lawyers and firms
• Mich Ethics Op. RI-200: joint letterhead for affiliated independent firms
• Mich Ethics Op. C-231: trade names in lawyer advertising

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=21&Type=6

Original opinion text

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

C-230

December, 1983

SYLLABUS

Lawyers who are not in fact members of a partnership or a single professional corporation may not use letterhead identifying themselves as associates or as an association of professional corporations.

References: MCPR DR 2-102(B), DR 102(C); CI-1, CI-111, CI-154, CI-298.

TEXT

The name on a law firm's stationery reads "Smith & Jones, a partnership including professional corporations." However, Smith is currently practicing as "Smith, P.C." representing certain clients as well as contracting with "Jones, P.C." to perform legal services for some of Mr. Jones' clients, and Jones performs legal services for some of Smith's clients. May Smith practice as a professional corporation along with Jones' corporation in a format to be known as "Smith & Jones, an association of professional corporations?"

It is permissible in Michigan for professional corporations to join together as a partnership for purposes of practicing law. This arrangement was expressly approved by this committee in CI-154. However, the committee has frequently noted that it is impermissible for lawyers to give the appearance of practicing as partners when a partnership does not exist. See e.g., CI-1, CI-111, and CI-298.

An association of professional corporations without any partnership or other unifying corporate structure would be inappropriate under ethics rules. MCPR DR 2-102(B) provides in pertinent part:

"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 and if otherwise lawful, a firm may use as, or continue to include in, its name the name or names of one or more deceases or retired members' of the firm or of a predecessor firm in a continuing line of succession . . . ."

MCPR DR-102(C) provides:

"A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners."

In CI-298, interpreting MCPR DR 2-102(C), the committee opined that a lawyer who practiced as "of counsel" to a firm, and was so designated on that firm's stationery, could not be included in the name of the firm in such a manner as to imply to the general public that the lawyer was in fact a partner in the firm. The committee stated:

"As long as, for the reasons you have stated, none of you feel it expedient to merge your firms and operations, the use of the proposed letterhead you submitted would appear prohibited as constituting a misrepresentation to the public."

Designation of Smith & Jones standing alone would indicate to a reader that Smith is in partnership with Jones. Adding the words "an association of professional corporations" does little to remove that assumption. Historically, the junior lawyer/employees of a law firm partnership have been identified as "associates." To identify Smith & Jones as association would be to imply that there is some type of corporate structure or partnership arrangement between Smith and Jones, other than the contractual arrangement suggested. Clearly there would not be.

A discussion of the word "association" can be found at 6 Am Jur 2d, Associations and Clubs, Sec. 2:

"Like partnerships, voluntary unincorporated associations have been classified as trading or non-trading associations, and are also classified as associations organized for profit or as non-profit associations. Also, according to the rule generally recognized at the present time, the members of a voluntary association or individuals of an unincorporated company organized for profit are to be considered as partners in their relations to third persons. On the other hand, voluntary associations formed for moral, benevolent, social, patriotic, or political purposes are considered by most authorities as resting on a different basis from that of partnerships for commercial enterprises, and members of such clubs, associations, and societies are not held to be partners, even though such clubs, etc., possess business features and are conducted partly for pecuniary gain." 6 Am Jur 2d, Associations and Clubs, Sec. 2, pages 430-431.

Moreover, the Supreme Court's decision in Friedman v. Rogers, 440 US 1 (1979), which upholds a state's right to ban the use of trade names, indicates that the public is to be protected against being misled by the name an organization uses. Use of the name "Smith & Jones, an association of professional corporations," although not inherently misleading, is misleading to the extent that it creates a perception in the mind of the average citizen that Smith and Jones are in partnership.

The committee concludes that under the circumstances outlined, use of the name "Smith & Jones," an association of professional corporations" would be misleading and a violation of MCPR DR 2-102. Further, we note that ABA Model Rule of Professional Conduct 7.5(a), as well as the Proposed Michigan Rules of Professional Conduct Rule 7.5(d), provide:

"Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."

We therefore conclude that such an organizational arrangement is impermissible.