Opinion 87-22
(October 1987)

Your request for professional guidance, as set forth in your letter to Michael H. Reed of July 31, 1987, was presented to the Professional Guidance Committee at its meeting on September 21, 1987. This letter will constitute the opinion of the Committee.

You propose to open a divorce clinic as a partnership between the three of you. This clinic will be located in the law office which two of you share, and your present office secretary will also be the clinic secretary. You intend to maintain your three sole practices. Initially, you propose to charge a flat fee for simple divorces, but should these matters be complicated by the addition of collateral domestic issues you will then charge an hourly rate to the client. Should this billing arrangement prove unsatisfactory, you further propose to refer these matters to yourselves or each other's sole practices. Finally your clinic name will be a trade name and will not include any of the partners' names. You have asked for the Committee's opinion on these proposed arrangements.

DR2-101(A) provides that..

No lawyer shall engage in, utilize or allow any form of advertising that is knowingly false, fraudulent or misleading.

DR2-102(A) provides in part:

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 name containing names other than those of one or more of the lawyers in the firm....

Rule 7.5(a) of the Model Rules of Professional Conduct provides that:

A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

Rule 7.1 of the Model Rules of Professional Conduct provides in part that:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:

(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;

(b) is likely to create an unjustified expectation about results the lawyer can achieve, or state or implies that the lawyer can achieve results by means that violate the Rules of Professional Conduct or other law;....

You propose to use a trade name for your divorce clinic. This constitutes a direct violation of DR2-102(P), and as such the Committee cannot approve it. By contrast, Model Rule 7.5 permits the use of a trade name as long as it complies with Rule 7.1, and does not imply an association with a public, charitable or governmental unit. Although adoption of the Model Rules in Pennsylvania is currently under discussion, as of this date these rules have not been adopted, and as such, DR2-102(A) must control.

In the past several years, with the liberalization of the rules governing attorney advertising, there are some situations where some types of trade names have been used by attorneys who include their name within the trade name. This is fully discussed in a policy letter from the Disciplinary Board to Allen B. Zerfoss, Esquire, who was Chief Disciplinary Counsel of the Board when it was written in March of l982. As of the date of this opinion, this letter has not been replaced.

Although the Committee felt that there would be no problem in complicated matters being handled by you individually outside of the clinic practice (and billed at an hourly rate), concern was voiced that the clinic not be a "front" or "feeding tube" for you to obtain clients for your private practices at your usual hourly rates. People who are going to a divorce "clinic" (whatever its name), are going to be operating under the assumption that they will be charged a flat fee. If too many clinic clients end up being charged an hourly fee, it could be argued that your advertising is misleading and violative of DR2-101(A). Furthermore, it might appear that you are engaging in "bait and switch." The other dimension to this problem is that as any attorney handling a divorce matter, quite often there are numerous collateral issues which have to be dealt with. Although disclosure of a possible higher fee in your clinic advertising was discussed, it was acknowledged that mention of this in the actual advertising would be counterproductive in obtaining clients for your business. As such, the Committee felt that the legal fees charged, as well as the circumstances that would give rise to a hourly rate charge, must be discussed and clearly delineated at the initial consultation, preferably in writing.

Finally, you must be careful of conflict of interest problems that could arise between your clinic clients and those in your individual practices. This issue was addressed by the Connecticut Bar Association Committee on Professional Ethics in its Informal Opinion 84-9. Basically, as that opinion indicates, you must careful to avoid conflict of interests between your clients, if a conflict arises, to deal with it as required by the Disciplinary Rules under Canon 5 and to protect client confidences as required by the Disciplinary Rules under Canon 4.

The Philadelphia Bar Association's Professional Guidance Committee provides, upon request, advice for lawyers facing or anticipating facing ethical dilemmas. Advice is based on the consideration of the facts of the particular inquirer's situation and the Rules of Professional Conduct as promulgated by the Supreme Court of Pennsylvania. The Committee's opinions are advisory only and are based upon the facts set forth. The opinions are not binding upon the Disciplinary Board of the Supreme Court of Pennsylvania or any other Court. They carry only such weight as an appropriate reviewing authority may choose to give it.