Milwaukee attorney Matthew Marx is a solo practitioner, though the firm name Matthew Harrison Marx & Associates doesn’t necessarily spell that out.
After more than a decade practicing out of his own office and going by just his name, Marx and four other attorneys in diverse practice areas decided last year to share an office and split overhead and secretarial costs.
“It’s not a partnership,” Marx said, “rather a marketing agreement amongst the five of us.”
But some suggest Marx and other solo attorneys in the state who use “associates” or “law offices” are misleading consumers and in violation of ethical rules.
“If the name you put out to the public, whether electronically on a website or in a newspaper that is a misrepresentation of service, that is a violation,” said Milwaukee ethics lawyer Dan Shneidman.
Two sections of Wisconsin Supreme Court rules governing the professional conduct of attorneys specify that lawyers cannot falsely advertise a service that “is likely to create an unjustified expectation about results a lawyer can achieve,” (SCR 20:7.1b) or “state or imply that they practice in a partnership or other organization,” unless that is the case (SCR 20:7.5d).
Marx has never had a client contest the name of his firm and argued the rules leave room for interpretation, especially in his situation. In no way is he misrepresenting his service, he said, because, technically, the other attorneys working in the office are associates in that they refer cases to one another.
As a family lawyer, Marx hands off criminal, immigration or personal injury clients to the other attorneys in the office.
“I think the name is actually a clearer representation of what it is that I offer,” he said, “because I’m letting people know that when they come in, they may not work with me.”
Only a handful of cases prosecuted by the Office of Lawyer Regulation during the last 15 years cite lawyers who ran afoul of communication and advertising rules tied to misleading firm names.
In 1993, Sheboygan attorney Earl Charlton lost his license, in part for falsely practicing in a partnership that did not exist. The sole practitioner used the name “Charlton, Gronowski, Welcenbach and Stanich” on firm letterhead and for bank accounts and was found to have advertised his firm as a “service corporation.”
Charlton, who was reinstated in 2002, said he and the other three attorneys practiced together in the same office, but not as one law firm.
“We were all associates, but not partners,” he said. “I didn’t see anything wrong with having all our names in the firm because we didn’t advertise and weren’t incorporated.”
In 2003, Prescott lawyer Warren Brandt received a public reprimand for a series of infractions, which included phone book advertisements in the late 1990s in which the sole practitioner falsely advertised his firm as “Brandt & Associates.”
OLR director Keith Sellen acknowledged the false use of plural firm titles can be misleading to consumers. But the regulatory arm of the Supreme Court doesn’t have enough time or people to review every firm name in the state, he said.
Sellen said a formal complaint has to be filed with OLR before his office starts an investigation.
“But in the Charlton case,” he said, “I think you saw how the rule can be interpreted, and, depending on the circumstances, it can be a concern.”
Another option to challenge the truthfulness of a law firm name, at least for competitors, is through trademark law, specifically the Lanham Act. The law gives businesses the right to sue a rival if there is reason to believe the business name is false or misleading.
Rick McKenna, chairman of the Intellectual Property Department at the Milwaukee office of Foley & Lardner LLP, said if a firm uses names or titles another questions as a truthful representation of the services offered or people employed, trademark law allows for litigation of the issues.
“If someone creates a firm name with three names and it’s just one lawyer, I could see where that could be interpreted as false and misleading,” he said. “There would be grounds for someone to bring action.”
Past State Bar President Doug Kammer said consumers shoulder some of the load. In many cases potential clients will realize the extent of a lawyer’s service after a phone call or visit, he said.
“I don’t know how misleading that would be,” Kammer said.
“Maybe I’m old-fashioned,” he said, “but I think anything other than the truth is misrepresentation.”
Marx said he welcomes an inquiry as to whether he is misrepresenting people. If someone complains, Marx said, he would change his firm name if necessary.
“I don’t expect to lose my license,” he said, “and have no fears about that.”
Jack Zemlicka can be reached at firstname.lastname@example.org.