Can a two-lawyer firm, where the second lawyer is 'of counsel' or an associate, use the word 'Group' in its firm name?

Plain-English summary

The inquiring lawyer wanted to use the word "Group" in her firm's name. She had an "of counsel" relationship with another attorney who kept an office on the premises, and was also seeking an associate attorney, though none was yet on staff. The committee treated the firm as having two associated lawyers for purposes of the analysis, whether the second was the of-counsel lawyer or a future associate.

The committee looked first at whether the of-counsel lawyer counts as a member of the firm. Drawing on Comment 2 to RPC 1.0(c), which defines "law firm," and Comment 3 to RPC 7.5, which addresses firm names, it noted that a lawyer who is "of counsel" will be considered part of a firm if the lawyers present themselves to the public in a way that suggests they are a firm or conduct themselves as a firm. It also cited Formal Ethics Opinion 178 (1984), decided under the former Code, which required an of-counsel lawyer to be an active WSBA member with a close, regular, frequent, and continuing relationship with the firm. Assuming the of-counsel lawyer meets that standard, the committee concluded the lawyer would be considered a member of the firm.

Because the RPCs, their comments, Washington case law, and Black's Law Dictionary do not define "group" in this sense, the committee turned to Webster's, which defines "group" as "two or more figures forming a complete unit in a composition." On that definition, two lawyers would constitute a "group." The committee concluded that, assuming the of-counsel lawyer meets the standard to be considered a firm member, a firm of two licensed lawyers (one of-counsel) could use "Group" in its name under RPC 7.5, and that the same analysis applies to a two-lawyer firm where one lawyer is an employed associate.

In practice

Under this opinion, and under the Washington rules as they stood at the time, a firm with two licensed lawyers may use "Group" in its name, counting an of-counsel lawyer as the second lawyer when that lawyer meets the standard for firm membership: an active WSBA member with a close, regular, frequent, and continuing relationship with the firm who presents to the public as part of the firm. The opinion reads "group" by its ordinary dictionary meaning of two or more, because the rules do not define it, and treats an employed associate the same way as a qualifying of-counsel lawyer for this purpose.

Common questions

Q: Can a two-lawyer firm call itself a "Group"?

A: The opinion concludes it can. Because "group" is not defined in the rules, the committee used the dictionary meaning of two or more, so two lawyers constitute a "group" under RPC 7.5.

Q: Does an of-counsel lawyer count toward the two lawyers?

A: Yes, if the of-counsel lawyer meets the standard for firm membership: under Comment 2 to RPC 1.0(c) and Formal Opinion 178, an active WSBA member with a close, regular, frequent, continuing relationship who presents to the public as part of the firm.

Q: Does it matter whether the second lawyer is of counsel or an associate?

A: No. The opinion states the same analysis applies to a two-lawyer firm where one attorney is an associate employed by the other.

Background and rules framework

The opinion interprets Washington RPC 7.5 (Model Rule 7.5; firm names and letterhead), using Comment 3 to RPC 7.5 and Comment 2 to RPC 1.0(c) (Model Rule 1.0 terminology; the definition of "law firm") to decide when an of-counsel lawyer is part of a firm. It supplements the rules with Formal Ethics Opinion 178 (1984) on the of-counsel relationship and with dictionary definitions, because neither the rules, their comments, Washington case law, nor Black's Law Dictionary define "group" in this context.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 / Washington RPC 7.5 (firm names; Comment 3)
• Model Rule 1.0 / Washington RPC 1.0(c) (definition of "law firm"; Comment 2)

Other opinions cited:

• WSBA Formal Ethics Opinion 178 (1984): standard for an "of counsel" designation (active WSBA member with a close, regular, frequent, continuing relationship)

See also

• WA Ethics Op. 2135: PLLC Law Firm Trade Name
• WA Ethics Op. 2162: Escrow Department Under a d/b/a
• ABA Formal Op. 90-357: Use of the 'Of Counsel' Designation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1603

Original opinion text

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

Advisory Opinion: 2163
Year Issued: 2007
RPC(s): RPC 1.0(c), 7.5
Subject: Use of the word, "Group" in the name of a law firm consisting of one attorney and one of-counsel

The lawyer in the current inquiry would like to use the word “Group” in her law firm’s name. She has represented to the Committee that she has “an ‘of Counsel’ relationship with another attorney who maintains an office within the premises.” She added that she is currently “seeking an Associate Attorney; however, none is currently on staff and may not be until after July 2007 when I expect to move my offices.” From the inquiring lawyer’s letter, it appears that when she moves, she may no longer have the of counsel relationship. Therefore, it appears that in either scenario the total number of lawyers associated with the firm will remain at two for purposes of the present analysis.

Comment 2 to RPC 1.0(c), which defines “law firm” for purposes of the Rules of Professional Conduct, and Comment 3 to RPC 7.5, which addresses law firm names, suggest that a lawyer who is an “of counsel” will be considered to be part of a firm if the lawyers involved “present themselves to the public in a way that suggests that they are a firm or conduct themselves as a firm[.]” RPC 1.0, cmt. 2. Although decided under the former Code of Professional Responsibility, the Board of Governors reached essentially the same conclusion in Formal Ethics Opinion 178, which was issued in 1984: “To be listed [on firm letterhead] as ‘of counsel,’ the lawyer must be an active member of the Washington State Bar Association and have a close, i.e., regular and frequent, continuing relationship with the lawyer or law firm[.]” Assuming that an “of counsel” lawyer meets that standard, then the lawyer would be considered a member of the firm.

The term “group” does not appear to have been defined in this context by the RPCs, the comments to the RPCs or Washington case law. Black’s Law Dictionary does not define the term “group” in this sense either. Webster’s Dictionary does, however, define “group” as “two or more figures forming a complete unit in a composition.” Based on this dictionary definition, it appears that two lawyers would constitute a “group.”

Assuming an “of counsel” meets the standard outlined above to be considered a firm member, then a firm consisting of two licensed lawyers, one of whom is an “of counsel,” could use the term “group” in its firm name under RPC 7.5.

The same analysis would apply to a two-lawyer firm where one attorney is an associate employed by the other.