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| Daniel Dalton is a solo practitioner in Tewksbury where he practices divorce and family law. |
“All for one, one for all” rallied the three musketeers. But it was Curly Howard (or was it Moe?) who added the more instructive “Every man for himself!”
In 1999 the Supreme Judicial Court seemed to side with Curly when it amended Rule 7.5 of the Massachusetts Rules of Professional Conduct. The amended rule at first seemed to spell the end of the economic and social benefits of non-partner group practice. But the Court’s purpose was to prevent the public from being misled and to provide guidelines for attorneys in their effort to limit the risk of vicarious liability.
The facts of Gosselin v. Webb, 242 F.3d 412 (1st Cir. 2001) presaged the 1999 amendment. The case is instructive reading for attorneys sharing space and expenses.
In Gosselin, the defendants were a group of non-partner attorneys who practiced under the “trade name” of Field, Hurley, Webb & Sullivan. The plaintiff tried to hold the group members vicariously liable for the alleged malpractice of Attorney James O’Dea. O’Dea had told the plaintiff that O’Dea was “with” Field, Hurley. O’Dea’s name was listed in Field, Hurley’s building on the directory beneath the names of the group’s members. Nothing on the directory or elsewhere indicated that Field, Hurley was anything but a partnership.
The Field, Hurley lawyers argued that they never claimed or held out that O’Dea was a firm partner. Nonetheless, the Court reversed a granting of summary judgment for the Defendants, stating that there was a genuine issue of material fact whether a partnership by estoppel existed. In allowing the suit to proceed the Court said that such a listing “implies a partnership-like arrangement.”
Comment 2 of Rule 7.5(d) of the Massachusetts Rules of Professional Conduct reads:
[2] ….lawyers who are not in fact partners, such as those who are only sharing office facilities, may not denominate themselves as, for example, “Smith and Jones,” or “Smith and Jones, A Professional Association,” for those titles, in the absence of an effective disclaimer of joint responsibility, suggest partnership in the practice of law. Likewise, the use of the term “associates” by a group of lawyers implies practice in either a partnership or sole proprietorship form and may not be used by a group in which the individual members disclaim the joint or vicarious responsibility inherent in such forms of business in the absence of an effective disclaimer of such responsibility.
Under Rule 7.5 (d), attorneys are still allowed to practice in a group and to use a group name. But the rule permits lawyers to state or imply “…that they practice in a partnership or other organization only when that is the fact” (emphasis supplied).
So what’s a space sharer to do?
Dan Crane, Bar Counsel for the Board of Bar Overseers, has written that a simple solution is to forgo a group name or joint letterhead. Still, Crane acknowledges the many benefits of group practice. (To read the article by Crane and Assistant Bar Counsel John Marshall, see Space-Sharers, Beware on the BBO website at www.mass.gov/obcbbo.) If attorneys wish to practice in a group, there must be a disclaimer, and the disclaimer must be “effective.”
The Office of Bar Counsel suggests that the following disclaimer would be effective (albeit a bit clunky, substance trumping style here): “Each attorney in this office is an independent practitioner who is not responsible for the practice or the liability of any other attorney in the office.” He adds that the disclaimer should appear in any medium in which the name of the office or the individual attorney appears, including fee agreements.
So, fortunately, the spirit of the three musketeers endures. But space-sharing attorneys who ignore Rule 7.5 could end up looking like stooges.