Naming Your Law Firm

There is plenty of advice out there on how to name your law practice.

LawLytics suggests your name should convey trustworthiness, prestige, and experience. This post from Above the Law pokes a bit of fun at the prototypical ampersand law firms: A, B, C, D & E LLP.  Lawyerist reminds us there are ethical and state regulatory considerations. Yes, indeed!  More on that below!  And I love the fact that WikiHow actually has an entry entitled “4 Ways to Choose a Law Firm Name.” (While the graphics are off-putting, it’s actually an okay read.)

Let me bottom-line it for you: there are times when lawyers can benefit by taking advice from the business world, and this is one of those times.

What’s in a name?

Moving on ……..

What are the dos and don’ts in selecting a name?

The best advice I found was on Findlaw.  A little ironic, since it was written by lawyers for potential business clients, but good is good.  Here is a summary:

  • Make your name descriptive.
  • Say it out loud: how does it sound?
  • What does it look like?  What kind of visual impact will it make on business cards and other materials?
  • Is it easy to understand?
  • Is it unique enough? (Also a legal requirement. Your choice must be “distinguishable upon the record.”)
  • Does it pass the abbreviation and acronym test?  (Make sure the shortened version of your name doesn’t spell out something embarrassing.)
  • Consider the meaning of your name in other languages if relevant to your practice.
  • Avoid names that are too long.
  • Avoid trendy names, since trends come and go.
  • Don’t imply by the name that your practice is somehow affiliated with or approved by a branch of the government. (Also an ethical requirement.)
  • Run your proposed name by family members and friends.

Read the complete post here.  For a chronological list of the steps involved in choosing a business name, see this resource sheet, also on Findlaw.

Assumed business name requirements in Oregon

If you’re an Oregon lawyer you should be proud of our Secretary of State (SOS) website. It really does a good job of educating businesses and providing information.  Assumed business names (ABNs) or what us old-school types call DBAs (doing business as) is no exception.  Here is exactly what you need to know about ABNs in Oregon.  Even better is this graphic, which comes from a PDF brochure on the SOS website:

abns

The ethics of naming your practice

Oregon RPC 7.5(c)(1) prohibits a lawyer from practicing under a name that is misleading as to the identity of the lawyers practicing under the name or that contains names other than those of lawyers in the firm. Oregon RPC 7.5(e) prohibits lawyers from holding themselves out as practicing in a law firm unless the lawyers are actually members of the firm.  This means:

  • Don’t append “and associates” to your firm name unless you actually have associates (staff don’t count).
  • Don’t use the firm name Smith, Jones, & Taylor if you are solo practitioners sharing office space and not practicing together as firm members.
  • Avoid adding “Law Group” to your name unless are two or more lawyers in the firm (staff don’t count).
  • Nonlawyer names are not permitted as part of the firm name.  You may list nonlawyers on letterhead if the nonlawyer’s status is clearly identified.  For example, if your legal assistant is Alyssa Jones, you may list her on your letterhead head as:

Alyssa Jones
Legal Assistant

Lawyers are also prohibited from using trade names that suggest a connection with government or with a public or charitable legal services organization.

Historical firm names and multi-jurisdictional practice

Using names of deceased or retired lawyers is permitted.  Multi-jurisdictional firms can use the same name in both jurisdictions, “so long as the letterhead listing of firm members indicates the jurisdictional limits of those not authorized in the jurisdiction where the office is located.”  See What’s In a Name: Things to consider before hanging that shingle.

Statutory requirements for PCs, LLCs, and LLPs

If you form a PC, LLC, or LLP, then the terms professional corporation, limited liability company, limited liability partnership or their respective abbreviations must appear as part of the firm’s name. ORS 67.625(1); ORS 58.115; ORS 63.094(1).

What about domain names?

Oregon does not have an ethics opinion specifically addressing the use of domain names.  Other jurisdictions do.  Arizona forbids domain names that imply a special competency or affiliation that is not factually true.  Ohio prohibits domain names that are misleading or claim a specialization.  New York and New Jersey are very particular in their rules.  California doesn’t have a straight-off statement on the subject, but has issued an opinion stating that the rules that apply to “communication” and “advertising” apply to websites.  Presumably this includes domain names.  Kentucky, North Carolina, South Carolina, Oklahoma Texas, and Virginia have also chimed in on this topic.

Oregon lawyers are advised “to be mindful of the overarching prohibition against misleading communications” when selecting a domain name.  That seems like pretty good advice to me.

All Rights Reserved Beverly Michaelis 2017

Practical Advice for Virtual Law Offices

Last week we discussed the ethical implications of WSBA Advisory Opinion 201601, “Ethical Practices of the Virtual Law Office.”  As the Committee on Professional Ethics noted, virtual practitioners must take care with supervision, confidentiality, avoiding misrepresentation, and conflicts of interest.  Understandable, but what exactly does that mean?  Here is some practical advice.

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Adequate supervision in a virtual workplace

In a virtual workplace lawyers and staff don’t work in proximity.  How do you ensure that remote workers receive “adequate supervision?”  The WSBA opinion mentions taking “additional measures,” but does not describe what those may be. Virtual employers should consider the following:

  1. Establish policies just as you would in a traditional office setting:  dedicated working hours when employees are expected to be within reach of their phones or computers; vacation allowance; sick leave policy; how you will measure performance; and so on.
  2. Create procedures for employees to follow.  Specifically, how will you distribute assignments and exchange completed work?  Technology is bound to be the solution, so see the discussion below about confidentiality.  Remember to address the “mundane” office tasks too: calendaring, accounting, conflict checking, etc.
  3. Require all remote workers to sign a confidentiality pledge or agreement.  The Professional Liability Fund has samples on its website.
  4. Get fully educated about legalities:  “In 2011, an Oregon appeals court found in favor of a J.C. Penney Co. Inc. home decorator who was injured after she tripped over her dog while working at home. Although the state workers’ compensation board had held her injuries were not work-related, the appeals court reversed, finding the employee had been working from her home as a term and condition of employment.”
    On-the-job injuries aren’t the only problem: be aware of Fair Labor Standards Act troubles, choice of jurisdiction, protecting proprietary information [forms bank, brief bank, customized practice management software], and the Americans with Disabilities Act.  The list doesn’t end there.
  5. Talk to an employment lawyer about securing your right to inspect employees’ remote workplaces and monitoring employees’ use of technology.
  6. Don’t neglect the need for face time. Management experts recommend regular web meetings and occasional in-person meetings for an optimal virtual workplace.
  7. Revisit your ethical responsibilities as a supervisor in Oregon.

Confidentiality

Advisory Opinion 201601 revisits the ethical requirements for cloud computing and email communication, the gist of which is:

  • A lawyer may use online data storage systems to store and back up client confidential information as long as the lawyer takes reasonable care to ensure that the information will remain confidential and the information is secure from risk of loss.
  • Email communication with clients is allowed, except lawyers must warn clients if they believe there is a significant risk of third party access.

Oregon takes a similar stance on cloud computing:  “Lawyer may store client materials on a third-party server as long as Lawyer complies with the duties of competence and confidentiality to reasonably keep the client’s information secure within a given situation.” OSB Formal Opinion No. 2011-188 [Revised 2015.]  For more details, see this post.  See Also OSB Formal Opinion No. 2016-191, “Client Property: Electronic-Only or “Paperless” Client Documents and Files,” which includes a further discussion about electronic client files.

As to email, Oregon lawyers are forewarned to:

  1. Use proper security measures in cases where information is “particularly sensitive or subject to a confidentiality agreement.”
  2. Avoid email entirely if a client requests it.
  3. Scrub for metadata.

See “Safeguarding Client Information in a Digital World,” and “Competency: Disclosure of Metadata,” OSB Formal Opinion No. 2011-187 [Revised 2015].

No mention is made about a duty to warn clients of third party access where the lawyer believes there is a significant risk.  However, it would be foolish not to do so.  Consider the example mentioned in the WSBA opinion: where the lawyer knows her client is using an employer-provided email account.

We’ve discussed this issue before. Your email may not be protected by lawyer-client privilege if your client is reading it at work.  Before you begin communicating by email, take note of the client’s address.  Does the domain correlate to their place of employment?  Don’t use it!  Even if the address is @gmail.com or a similar web-based service, don’t assume your client only reads and prints email at home.  Have a discussion about where, when, and how your client reads your confidential communications and follow the other advice mentioned here.

Another quick word about using the cloud

Virtual practices could not exist without the cloud, a VPN, or some means of hosting and exchanging client information.  Beyond the basics of taking reasonable care to protect confidentiality, implement policies and procedures as described above.  Focus on security and steps to take when a virtual employee stops working for you.  Remote workers can put your law practice at risk if they upload or exchange content that contains malware or ransomware. A study commissioned by a security firm in the UK and Germany found:

  • One in four employees admitted breaking security policies.
  • Nearly two in five said either they, or someone they know, have lost or had stolen a device in a public place.
  • Three-quarters of these devices – such as laptops, mobile phones and USB sticks – contained work-related data, including confidential emails (37%), confidential files (34%) and customer data (21%).
  • Approximately one in ten lost financial data or access details such as login and password information, exposing even more confidential information to the risk of breach.

It is equally important to have a checklist for departing staff that ensures revocation of login credentials, return of workplace property, and disposition of ongoing email or voice communications directed to someone who no longer works for you.

Consider talking to an employment law attorney, or as a starter, see the Professional Liability Fund’s (PLF’s) Checklist for Departing Staff.

Duty to avoid misrepresentation

Advisory Opinion 201601 warns that lawyers may not imply the existence of a physical office or formal law firm where none exists. Therefore, unless you’ve arranged for ready access to meeting spaces or the ability to see clients on a drop-in basis, don’t imply those resources exist.  Posting or implying that you are part of a firm on your website, social media, or elsewhere is also a no-no.  (The same is true for office sharers, an example given in the ethics opinion.)

Avoiding conflicts of interest

Advisory Opinion 201601 points out that virtual offices must ensure that the conflicts checking system is equally accessible to all members of the practice, lawyers and staff, and that such access is reliably maintained.  This only makes sense.

Be sure to add your calendaring system, billing system, client matter records, and everything else you need to operate virtually as a law practice.  All of it must be equally accessible and reliably maintained.

Will the cloud be your savior when it comes to accessibility and reliability?  Probably, but it can’t help you with issues like when to run a conflict check, how to run a conflict check, or the need to circulate a new client list to everyone in the office.  As noted above, procedures will be key!  For help, contact a friendly practice management expert, like myself or one of the advisors at the PLF. While you’re on the PLF site, check out the many publications, practice aids, and forms that will assist you with establishing office protocols.

All Rights Reserved Beverly Michaelis 2017