New York Personal Injury Law Blog » Attorney Ethics, Sotomayor


December 3rd, 2014

“& Associates” as an Ethical Violation Gets a Courtroom Visit

Ethics-700970-774132Five years ago, when Sonia Sotomayor came before the Senate Judiciary Committee for confirmation, she released a questionnaire that gave her legal history, and she revealed that she once had a firm called “Sotomayor & Associates.” The problem? There were no associates.

Oops. I wrote the piece up within a few hours of the document’s release, describing it as a one of the less serious pieces of misleading advertising that take place, but a violation nonetheless.

And there the post sat for a couple weeks until the Washington Times picked it up in an editorial. And then the New York Times did a big story on it (without attribution to me, thank you very much) a month after I did, complete with White House response.

But the most curious part of the episode was the White House claim that this wasn’t an ethical violation, raising the issue from an “oops” to a full-blown kerfluffle. They actually paraded out a defense of the clearly misleading practice by offering a written analysis by Hal R. Lieberman, a former disciplinary committee chief counsel in New York:

“Neither bar opinions nor cases to date have held that it was misleading for a sole practitioner to use the name ‘and Associates’ in such private communications…In fact, in the early 1980s, no rule prohibited the use of ‘and Associates’ in these circumstances and the only authority regarding the use of ‘and Associates’ in an advertising context was advisory, not mandatory, and thus not readily enforceable.”

Lieberman was dead wrong, in my opinion, and I called this a lousy defense.

Well, the answer is now clear, for any lawyers that thought they could get away with puffing out their firm names to make them look bigger than they actually are. Yesterday the Appellate Division, First Department censured a lawyer over the use of “& Associates” when he had no associates; he was a solo practitioner (Matter of Cardenas).

To be sure, this was the least of the transgressions committed in the censure that took place, with the big issue being the apparent deliberate commingling of funds. For the non-lawyers that may be reading, that means the lawyer borrowed money for his own use from an attorney escrow fund where it was supposed to sit segregated.

But mixed into the panoply of charges was this clear and unmistakable bit, for violating:

Rule 7.5(b) (using business cards and letterhead listing his law firm as “Cardenas & Associates,” when, during the period at issue, he did not employ any associates)

It is highly doubtful a lawyer would be censured for this alone. But the rule is nevertheless clear. It is misleading to call your firm “& Associates” when there are no associates. And if the White House or any other authority tries to tell you otherwise, there is now a decision to point to.


10 thoughts on ““& Associates” as an Ethical Violation Gets a Courtroom Visit

    • If you have one associate and your firm name is “and Associates” then it would be misleading. That lawyer would have made the firm look bigger than it really is.

      My own preference for small firms is to avoid this altogether. I use The Turkewitz Law Firm, for example, a format fits any size firm from 1-1,000.

  1. Florida permits use of “Professional Association” for one or more people, e.g. Joe Lawyer, PA, or Fred Doctor, PA. I admit that I wondered about that, but the counter argument is that showin “PA” in the firm name is a notice of similar intent and meaning to “Inc”.

    That said, I think that “Fred Doctor & Assoc, PA” if there are no associates is certainly misleading. The difference is that you are actively claiming more manpower, as opposed to merely identifying a corporate form.

  2. Belil Law Firm definitely would fit better on cards and letterhead than what I currently use now, which is the Law Office of First Middle Init Last, PC. Food for thought.

    • Belil Law Firm definitely would fit better on cards and letterhead than what I currently use now, which is the Law Office of First Middle Init Last, PC. Food for thought.

      I used “Firm” since it was a cleaner look and allowed for expansion without name change if I wanted to do that.

  3. I used “Firm” …

    Problem is that is not a magic word like “Inc” or “PA” and so it does not give the same protection against personal liability.

    • There are a number of cases out there holding that using the phrase “and associates” is misleading.

      I thought it was a no-brainer, and was stunned a few years ago when the White House trotted out an “expert” to defend the practice. But now it is clear (in NY).

  4. White house trotted out an “expert”

    I have not come to give high regard to opinions from govt experts; the current administration’s practices have done little to change this view for the better.

    I’d consider “and associates” to be misleading in any case where there are no associates. Not really even a debatable point: if you are claiming associates, and there are not at least 2 of them, then it is making an affirmative untruthful claim.

    A firm can have one lawyer. An association can have one member (e.g. the Limburger Cheese Association of Small County). But if you affirmative claim the plural of something, then there really must be more than one.