One of the areas I like to address for my fellow New Jersey/New York attorneys is the differences between how things work in each state, including the rules governing the conduct of attorneys. With New York and New Jersey now allowing reciprocity (also known as admission on motion), there are some great opportunities for attorneys who want to expand their physical presence to the other side of the Hudson.
But we need to be on our toes when expanding to a different state. The practice of law in New York and New Jersey is different in numerous respects. The variation in court rules/procedures and practices may be the subject of many articles and posts, but my focus today is making sure that you do not get off on the wrong foot by using a firm name that is permitted in New York, but not in New Jersey, or vice-versa. This post may also be useful if you are considering expanding into any other state.
On January 17, 2020, the New York State Bar Association’s Committee on Professional Ethics issued New York Ethics Opinion 1179, entitled “Conducting Law Practice Under a Trade Name.” The Committee addressed whether an out-of-state (non-NY) firm permitted to practice law using a trade name in its home state may practice law in New York. The inquiring party was from California, which, unlike New York, has long allowed law firms to use trade names.
What is a “trade name” as that term is used in this context? A quick internet search, for example, brought up a law firm named Radix Law. Radix is not the last name of any attorney at that firm. Radix means “root.” The firm’s founder chose that name to underscore the law firm’s “roots” in its home state as compared with those of other outside, national firms seeking to expand their practices into that state to take advantage of its growing economy. Radix is a clever (even cool, or “lawyer cool,” as it were) name and would be allowed in the states that allow law firms to operate under trade names (such as where Radix Law is located).
New York, however, does not allow trade names. NY RPC 7.5(b) provides that “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 containing names other than those of one or more of the lawyers in the firm. . . .” (emphasis added). In response to an inquiry on this subject matter, the Committee made clear that NY RPC 7.5(b) applies “even though the use of a trade name is permitted in another state in which the firm has offices.” (Op. ¶ 6) (emphasis added).
New York’s RPC 7.5(b) is different from New Jersey’s RPC 7.5 in this respect. New Jersey allows law firms to operate under trade names, but the name must accurately describe the nature of the firm’s legal practice and shall be accompanied by the full or last names of one or more of the lawyers practicing in the firm or the names of lawyers who are no longer associated in the firm through death or retirement.” NJ RPC 7.5(e). The official comment to NJ RPC 7.5 provides “Millburn Tax Law Associates, John Smith, Esq.” as an example of an allowed trade name – provided the firm’s primary location is in Millburn and its primary practice area is tax law. New Jersey also allows a law firm with offices in more than one jurisdiction to use the same name in each jurisdiction – meaning, the Radix Law firm could open a New Jersey office under that name inasmuch as it is permitted to do so in its home state. NJ RPC 7.5(b). New York explicitly disallows such an exception.
So if you are seeking to open an office in another state, do your due diligence. The materials you review with respect to the state where the new office will be should include:
- The RPCs
- The Court Rules and Statutes – For example, New Jersey allows law firms to operate as a Professional Corporation, but the Court Rules and Statutes each have different restrictions, all of which must be followed. (See New Jersey Attorney Ethics: The Law of New Jersey Lawyering by Kevin H. Michels for a detailed discussion on Professional Corporations in New Jersey, including the requirements under the Court Rules and Statutes.
- Opinions issued by the applicable Committees on Professional Ethics, Attorney Advertising or comparable committees in the jurisdiction into which you are looking to expand.
It is worth the time to vet this issue carefully. Expanding into a new state – while exciting – will have a host of challenges and adjustments. You might as well start by getting your firm’s name right.