LAWYERS BOARD PROPOSES OPINION NO. 20
By
Martin A. Cole, Director
Minnesota Office of Lawyers Professional Responsibility
Reprinted
from Bench & Bar of Minnesota (March
2009)
Lawyers Professional Responsibility Board Opinion No. 1
states “It is the policy of the State Board of Professional Responsibility to
issue, from time to time, advisory opinions as to the professional conduct of
lawyers . . . on matters deemed important by the Board. The Board and the Supreme Court consider these
opinions as rule interpretations that guide attorneys’ professional conduct
even though they are not binding on the Court.”Ftn 1
The Lawyers Board last
exercised this policy in 1999 when it issued Opinion No. 19. Not too long thereafter, the supreme court
issued its decision in a case entitled In
re Admonition Issued in Panel File No. 99-42.Ftn 2 In that matter the
court held that Board opinions could not be used as a source of discipline,
should be interpretations of existing rules and be strictly advisory in nature. As part of the 2005 amendments to the
Minnesota Rules of Professional Conduct (MRPC), several of the Board opinions
were incorporated into the Rules or the comments to the Rules.Ftn 3 Many of the remaining Board opinions were
repealed, particularly those not specifically based upon an existing rule.Ftn 4
This past year, the Board
determined to revive its Opinion Committee, first to consider whether the Board
should again issue opinions at all, and if so by what procedure. After study, the Board has voted to resume
issuing advisory opinions on appropriate topics. Now, the Opinion Committee has presented to
the full Board its first proposed new opinion. Proposed Lawyers Professional Responsibility
Board Opinion No. 20 states:
The use of the word “Associates” or the phrase “& Associates” in a law firm name, letterhead or other professional designation is false and misleading if the use conveys the impression the law firm has more attorneys practicing law in the firm than is actually the case.
The opinion then has its
own lengthy comment explaining that the opinion is an interpretation of Rules
7.1 and 7.5, MRPC, sets out the policy reasons for such an opinion, and
provides support from the opinions of many other jurisdictions, which almost
unanimously have determined that the use of “Associates” or “& Associates”
is false and/or misleading for solo practitioners and some two-person firms.Ftn 5 This remains true whether the name is a
registered trade name or not.
The Board’s Opinion
Committee has already solicited and received input from the MSBA Rules of
Professional Conduct Committee, the Section on General Practice, Solo and Small
Firms, and the Hennepin County Bar Association Section on Solo and Small Firm
Practice. Before determining whether to
officially issue the opinion, however, the Board seeks further input from the
bar and legal community generally. So,
if you have comments you wish to share with the Board and wish the Board to
consider, please submit them in writing to: The Office of the Director of Lawyers
Professional Responsibility, 1500 Landmark Towers, 345 St. Peter Street, St.
Paul, MN 55102-1218, Attn: Siama Chaudhary; or fax a submission to us at (651)
297-5801. The Board’s stated deadline
for comments is March 20, 2009, so please don’t delay. The timing has to do with the Board’s
quarterly meeting dates and obviously not with Bench & Bar’s publication
schedule.
Why This, Why Now?
Perhaps not surprisingly,
some attorneys hearing about the proposed Opinion No. 20 have asked, why this
topic at this time? Is it truly a
“matter deemed important by the Board?” Well, the revived Opinion Committee had to
start with something, and perhaps no issue would seem earth-shattering by that
standard. And to be candid, this is not
the most significant issue on which the Board might have or may yet issue a
formal opinion. Nor, as with most issues
related to lawyer advertising, is it the source of many complaints to the
Director’s Office, most of which are from other lawyers.Ftn 6
Nevertheless, the “&
Associates” issue has been the source of considerable agitation among many
lawyers with whom Board members or attorneys in the Director’s Office have
spoken. Lawyers leaving firms, or just
starting out in the profession, may be opening solo practices in increasing
numbers in these tougher economic times. Maintaining a level playing field for those
attorneys in their efforts to attract clients is not unimportant. I’ve heard from several lawyers who hesitated
and ultimately refrained from using the phrase “& Associates” to describe
their practice, based on their ethical concerns. Those same lawyers noted with some annoyance
that many of their fellow solo practitioners were using the phrase with
apparent impunity. So the call for this
opinion, while not deafening, does exist.
The use of the phrase
“& Associates” has been prevalent in Minnesota for several years. To date, the Board and Director’s Office have
not taken an aggressive enforcement posture as to this issue. For some, therefore, significant change may be
required if this opinion is issued. That
is why the Board is publishing the proposed opinion in draft and seeking input
before finalizing and issuing the opinion. Also, the proposed comment to the opinion
specifically calls for no discipline to be issued for violations of Rules 7.1
and 7.5 (for using this particular term or phrase) until at least September 1,
2009, to give practitioners a reasonable amount of time to alter their signage,
letterhead and the like.
Future Opinions
In the 26 years through
1999 in which the Board periodically issued opinions, only 19 formal opinions
were issued. Even if the Board becomes
more proactive in its use of Board opinions, it seems likely that opinions will
remain sporadic. The study, draft, and
publish-for-comment approach adopted by the Board almost assures that, at best,
new opinions will be issued less than once a year. No specific topics for future opinions are
under consideration at this time. Along
with comments on proposed Opinion No. 20, suggestions for future Board opinions
are welcome.
Notes
1 LPRB Opinion No. 1, as amended January 26, 2006.
2 621 N.W.2d 240 (Minn. 2001).
4 See,
Bateman, “Opinions of the Lawyers Board,” Bench
& Bar of Minnesota, November 2002.
5 The full text of proposed LPRB Opinion No. 20,
including the comment, can be found on the Board’s website at http://www.mncourts.gov/lprb/index.asp. It is too lengthy to reproduce here.