New York Personal Injury Law Blog » Attorney Ethics, Judiciary, Sotomayor


June 4th, 2009

Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

I was skimming the questionnaire of SCOTUS nominee Sandra Sotomayor to look back at her life in private practice. And I found this starting on page 143 of the Committee Questionnaire:

ii. whether you practiced alone, and if so, the addresses and dates;

Yes, with Sotomayor & Associates, 10 3rd Street, Brooklyn, New York 11231, from 1983 to 1986, but this work was as a consultant to family and friends in their real estate, business, and estate planning decisions. If their circumstances required more substantial legal representation, I referred the
matter to my firm, Pavia & Harcourt, or to others with appropriate expertise.

Now Sotomayor was a prosecutor up until 1984 and started in April of that year with Pavia & Hartcourt, according to the questionnaire. That means she had her private law firm, likely a home office based on her modest description of the practice, that overlapped both her prosecutor’s position and her associate’s position at Pavia & Hartcourte. So the question here is not whether she had permission to have that private firm, as I suspect she must have, but rather, why she called it “Sotomayor & Associates“?

Did she have any associates when she was advertising herself in that manner? My guess is no, given that this was a side business that she says was devoted to consulting for family and friends. And if she had no associates, then it is a no-no to tell the world that you do. That’s misleading.

From the American Bar Association comes this all-inclusive statement that such conduct is prohibited in every state:

Are there any Associates (or “Law Groups”) in the House?

There are several state bar opinions that address a lawyer’s use of terms in a firm name that carry with them the implication that there is more than one lawyer in the firm. Examples of such terms include “X and associates” or “The X law group”. Citations to these opinions, along with digests of them as they appear in the ABA/BNA Lawyers’ Manual on Professional Conduct follow.

All State bar opinions are in agreement that a lawyer may not use the term, “and Associates” if there are in fact no associates in the firm. See, South Carolina Opinion 05-19 (2005) (A lawyer seeking to open a governmental affairs and lobbying firm consisting of the lawyer and two nonlawyer employees may not name the firm “John Doe and Associates, P.A.” The name violates Rules 7.1 and 7.5(a) because it misleadingly implies that the firm has more than one lawyer.), Ohio Opinion 95-1 (1995) (A lawyer who is in solo practice may not use the phrase “and Associates” in the firm name to indicate that the lawyer shares space with other lawyers, acts as co-counsel with other lawyers, or has non-lawyer employees. A lawyer who is the sole shareholder in a professional corporation may not use the phrase “and Associates” in the firm name when the lawyer in fact has no employees.)

In New York, the conduct would fall under DR 2-102, which bars misleading advertising on a letterhead. [See Comment 2] If in fact Sotomayor had no associates at her firm, it would appear she overstepped the bounds of self-promotion by making her firm seem bigger than it was.

Now I am well aware that there are a whole lot more serious ethical violations that take place. But I do my fair share of writing on the subject of advertising and self-promotion when it comes to practicing lawyers, and it wouldn’t be fair to others to give Sotomayor a free pass on the subject.

Previous Sotomayor posts here:

Update: I Googled the law firm name with this query: “Sotomayor & Associates” Sonia. I did not find any discussion of Judge Sotomayor’s private practice under that firm name.

Update 2:

Links to this post:

busting judge sotomayor
judge sotomayor has the enviable advantage of being the nominee of a democratic president, and an overwhelmingly democrat congress. as such, her success has been a foregone conclusion. but simply arguendo, let me outline reasons why

posted by PoliticalChic @ July 16, 2009 10:49 AM

blawg review #220
welcome to blawg review #220, rounding up some highlights of the past week from around the legal blogosphere. it’s my second time hosting it here at overlawyered, a blog that as its name implies maintains a certain critical distance

posted by Walter Olson @ July 13, 2009 3:40 AM

the lessons of sotomayor and associates
fittingly, it was a solo – eric turkewitz – who broke the story of supreme court nominee, sonya_sotomayor’s foray into solo practice under the firm name, sotomayor and associates -impermissible name under new york ethics rules given

posted by [email protected] (Carolyn Elefant) @ July 13, 2009 12:59 AM

why eric turkewitz still matters
with regard to the issue of giving credit for discovering the “sotomeyor & associates” issue, eric turkewitz comments: something might be in the public domain, but it if is buried in a box of other documents, someone still has to go

posted by Mark Draughn @ July 09, 2009 11:48 AM

on the ethics of sourcing for bloggers and journalists
radley balko used to piss me off. back in my early days in the blogosphere, i sent him a few links to stories i thought might interest him. he then mentioned those stories in his agitator blog, but didn’t credit me for sending him the

posted by Mark Draughn @ July 08, 2009 11:24 AM

sotomayor “and associates”
when practicing a bit of law on the side during her time with the manhattan da’s office and at a larger law firm, the nominee called her very small practice “sotomayor & associates” even though it had no lawyers but herself.

posted by Walter Olson @ July 08, 2009 7:20 AM

sotomayor & associates
[guest post by drj]. the new york times addresses sonia sotomayor’s legal practice in the 1980’s: “in her questionnaire, judge sotomayor says she was the “owner” of sotomayor & associates, which she described as a consulting business

posted by DRJ @ July 08, 2009 12:08 AM

post-hiatus supreme court stuff…
it’s been a long time, i shouldn’t have left you… (anyone who can finish that sentence wins a prize!) i have been on a bit of a hiatus while i concentrated on completing my fellowship at the drum major institute for public policy.

posted by Kia Franklin @ June 12, 2009 6:08 PM

blawg review #215
it’s 2:30 am on the morning of world oceans day, as i sit here drowning in a sea of submissions for blawg review #215. buoy, i’m in trouble, with a sinking feeling about all i have yet to do. but before i sail into the heart of this
posted by [email protected] (Carolyn Elefant) @ June 08, 2009 3:25 AM

7 thoughts on “Did Sotomayor Violate NY Ethics Rules in Private Solo Practice with "& Associates" Name?

  1. Note how recent your referenced opinions are — 1990s and 2000s. The practice was quite common up until then, hence the later opinion letters.

    While looking for the rule, try digging up some opinions from that era as well.
    # posted by Anonymous Max Kennerly : June 04, 2009 8:52 PM

  2. Max:

    Here is an advisory opinion from 1973 from the NYS Bar Association that I found:

    Opinion 286 – 3/16/73 (1-73)
    New York State Bar Association Committee on Professional Ethics
    March 16, 1973


    May an attorney who employs two or more “associates” use firm name “John Smith and Associates”?


    While not the usual form, there is nothing improper in the use of the firm name “John Smith and Associates”, provided that the lawyer or the firm has in fact two or more lawyer employees so that the name is not misleading. EC 2-10; EC 2-13; ABA 318 (1967); cf. EC 2-11; N.Y. State 45 (1967). However, where there are other partners in addition to those indicated in the firm name, it could be considered misleading to add, after the firm name the words “and Associates”, unless on the letterhead the names of all the partners and, separately, the names of the associates are shown. (ABA 310 (1963).)
    # posted by Blogger Eric Turkewitz : June 04, 2009 9:45 PM

  3. Good find; that’s a problem.

    There is, however, still the issue that she was apparently not actually marketing the firm at all. Would it be a violation to merely have the name even if you never marketed it to clients?

    Also, did she have the ability to call on her other firm’s associates if need be?
    # posted by Anonymous Max Kennerly : June 04, 2009 11:26 PM

  4. Max:

    I think just using letterhead with the name is sufficient with respect to the marketing part.

    With respect to being able to call on others, I don’t think that makes them an “associate.” I believe an associate must be an employee.

    If there were others she might call on from time to time, these could be listed as “of counsel,” but that is different than being an associate.
    # posted by Blogger Eric Turkewitz : June 05, 2009 6:27 AM

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  6. If I’m not mistaken, ethical violations are only relevant if they are committed by Republicans. One could speculate heavily on why that is so (e.g., Democrats being the champions of all that is fair and progressive, are not bound by ethical rules; or that because Republicans emphasize “family values,” they should be held to a higher standard, etc), but the fact remains, Bill Clinton got off scot-free for actions that would get your local school janitor fired while Bob Livingston and Newt Gingrich lost their jobs for having garden-variety adulterous affairs many years earlier that were only brought to light because they led the call for Clinton’s impeachment. Therefore, Sotomayor, being Democrat, female, and Latina, is presumably entitled to three free passes.

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