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The following is an archived advisory opinion of the Committee on Judicial Ethics (CJE) from the time period of 1989 through 2014, and the Code of Judicial Conduct that was in effect from October 1, 2003 to December 31, 2015. Archived advisory opinions also include the Code that was in effect through September 30, 2003. The Supreme Judicial Court adopted a new Massachusetts Code of Judicial Conduct, effective on January 1, 2016. A judge should not rely on any pre- 2016 CJE Advisory Opinion without contacting Supreme Judicial Court Senior Attorney Barbara F. Berenson, counsel to the Committee on Judicial Ethics, at Barbara.Berenson@jud.state.ma.us or 617- 557-1048.
You have requested the advice of this committee concerning what action you are required to take to have your surname removed from the firm name of your former legal practice. Prior to becoming a judge you were one of the equal shareholders in a law firm. The day before you were sworn in as a judge you transferred your interest in the firm. The firm executed a promissory note, payable over a period of years, to compensate you for your share of the business. You state that you also became aware that Canon 2 (B) of the Code of Judicial Conduct has been interpreted to prohibit a judge from allowing his name to be included in the firm name. During the past two years you made oral and written requests to have your name removed from the firm title. An attorney has assisted you in this process. Your former firm has removed your name from the listing of attorneys on its letterhead, but continues to assert that the firm's name, which still includes your surname, is the property of the legal corporation.
Approximately one month before you were sworn in, you wrote to your firm and requested that your name be removed from the firm name. The partners, who are also the shareholders of the corporation, informed you that your full name had been removed from the letterhead and all other materials relating to the firm as of the date of your swearing in. They stated, however, that they could not agree to remove your surname from the firm name, given their assertion that your surname is part of the professional corporation's trade name and, as such, is the property of the corporation. The shareholders also stated that complying with your request would significantly reduce the "goodwill" associated with the corporation's trade name to the financial detriment of the corporation. In a subsequent letter, sent to the firm about one year later, you reiterated your concerns. You informed the shareholders that you were "compelled to restate the necessity" that your surname be removed from the firm name. In that letter you cited Rule 7.5 of the Rules of Professional Conduct, which states that "[t]he name of a lawyer holding a public office shall not be used in the name of a law firm," and your concerns given your understanding of the requirements of Canon 2 (B) of the Code of Judicial Conduct. In a subsequent letter you informed the shareholders that, given the difference of opinion, an informal meeting with Bar Counsel or with the Ethics Committee of the Massachusetts Bar Association might be an appropriate course of action. The firm has declined that invitation.
Given this history, you ask this committee for advice as to whether there are any other affirmative steps you must take to have your name removed from the firm's title. Canon 2 (B), which you have cited, states in relevant part that:
"A judge . . . should not lend the prestige of his office to advance the private interests of others; nor should he convey or permit others to convey the impression that they are in a special position to influence him."
Your former firm has been quite candid in acknowledging the financial value of your name as a corporate asset. In CJE Opinion 90-1, the committee provided advice concerning a judge's efforts to remove biographical information from a brochure that was to be distributed by his former firm to current and prospective clients. The committee noted that while it could be argued that the brochure's mention of the judge's prior association with the firm and current office was motivated in part by justifiable pride of a former colleague's achievement and public service, the use of the information constituted more than a statement of truthful and historical fact. The brochure was intended to advance the interests of the judge's former firm, and the committee concluded that the brochure's selective emphasis of the judge's name and office implicated Canon 2 (B). In that instance, the committee concluded that the judge had an obligation pursuant to Canon 2 (B) to at least notify the firm of his objection to the use of his name and office. The firm complied with the judge's request, so the committee did not reach the question of what action the judge may have had to undertake if that were not the case.
The facts presented here are clearly different. Your former firm has removed your full name from the letterhead and other materials but has continued to assert that the firm title is corporate property. For almost two years, as the supporting materials you have submitted to this committee attest, you have made explicit objections to your surname being included in your former firm's title. In articulating your concerns you have solicited the assistance of an attorney and have informed your former colleagues of the requirements of Rule 7.5 of the Rules of Professional Conduct. You have also raised the possibility of soliciting an opinion from the Board of Bar Overseers or the Ethics Committee of the Massachusetts Bar Association. Other than filing a formal complaint with the Board of Bar Overseers or initiating legal action, it is difficult to envision what other affirmative steps you could take.
It is the opinion of the committee that while it is within your discretion to file a complaint with the Board of Bar Overseers, you are not required to do so. Even if the firm's continued use of your name violates the requirements of Rule 7.5, it would not appear to be the type of violation for which disbarment, or some other type of severe sanction, is likely to result, and the filing of a complaint would not be mandatory. In CJE Opinion 2002-4, the committee noted that under Rule 8.3 of the Rules of Professional Conduct, the kind of misconduct requiring a report would be such that raises a substantial question as to a lawyer's honesty, trustworthiness, or fitness as a lawyer in other respects. The 1999 Comments to Rule 8.3 speak of misconduct "that, if proven and without regard to mitigation, would likely result in an order of suspension or disbarment, including misconduct that would constitute a 'serious crime' as defined in S.J.C. Rule 4:01, § 12 (3)." This interpretation of the rule raises a substantial question as to whether the shareholders' conduct would result in suspension or disbarment. In this context, the fact that your surname is fairly common is of some relevance, as third parties might not automatically associate you or your office with the firm. This would alleviate, to some degree, the concern that the business is using your name and title for financial gain.