Sonia Sotomayor "and Associates"

[I've edited to make this tighter.]

 Story here and here.  Eric Turkewitz, a New York lawyer/blawger, broke the story.  [Then professor Alberto Bernabe, of the John Marshall School of Law, blogged about it.]

A solo cannot describe his or her practice with the phrase "and Associates" if in fact there are no associates there.  It's false and misleading.  There's not much more to say on whether or not the firm name was deceptive.  

The story also raises the hypothetical issue of whether Sotomayor could have called her practice "The Law Offices of Sonia Sotomayor."  (Notice the "s" at the end of "Office.")  I raised that issue on two legal ethics listservs, both of which are full of ethics gurus, and there was wide disagreement.  (When I opened my solo practice, I chose the safe route of going with "John Steele, Attorney at Law.")

For the record, I don't think this issue ought to delay her confirmation by the Senate.  It's a common mistake and unless it's buttressed by a showing that she falsely described her office and services in other ways, I think it's just a small, unfortunate incident in the course of a long and impressive legal career.  

One might compare this issue to the ethics issue that was trotted out against Samuel Alito's nomination.  He had presided over a case where the Vanguard mutual funds -- where Alito had his savings -- was a nominal party as a widow and a creditor fought over who could possess the funds in the account of the widow's deceased husband.  Alito or his staff had failed to include "Vanguard" on the list of names that went into the conflicts checking program and neither Alito nor his staff caught the technical conflict when Vanguard appeared.  It wasn't Alito's proudest moment as a judge, but it certainly didn't weigh heavily in the minds of reasonable, non-partisan observers.  While Sotomayor's conduct is marginally more blameworthy, in that she was puffing up her practice, this shouldn't be blown out of proportion.  If after her long practice as lawyer and judges this is being touted as a big item against her, then she should sail through.

Here are some pertinent legal authorities.  [Thanks to Eric Turkewitz, who broke the story, here is a cite to a New York opinion holding that solos shouldn't say "and Associates."  Opinion 286, New York State Bar Association Committee on Professional Ethics (March 16, 1973); see also, See ABA Formal Ops 310, 318; Ohio State Bar Assn, Op 83-1 (1983); Florida Bar Op. 86-1 (1986);  Utah State Bar Op 138 (1994); Suffolk County Bar Ass'n Op 89-2.  Also, she'd have problems under this new opinion from Minnesota, which presents a nice treatment of the issue, complete with cites from various authorities:

 http://www.mncourts.gov/lprb/Opinion20.pdf

New Mexico has an opinion to the same effect:

http://www.nmbar.org/legalresearch/eao/2005-2006/2006-1.pdf

Update 1:  Here's what's being reported as the White House response:

"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."

Well, that's a handful of lawyerly quibbles!  Note how it says that no authorities held it was misleading "in such private communications."  But they don't say that there was no basic prohibition on false or misleading statements about one's law practice.  There was.  There is.  Nor does it say that it's not misleading to say "and Associates" when there are no such associates.  To my knowledge, every legal authority that has ever addressed the question has easily found that to be misleading.  Of course, I understand how politics work, and I suppose it's just not tenable for the White House to say, "she was young and she goofed in a 'no harm' way that lots of solos have goofed." 

Comments

[Eric Turkewitz]

There is an advisory opinion in NY dating back to 1973 from the NYS Bar Association saying that "& Associates" shouldn't be done by a solo. It's in the comments of the original posting on the subject that I did.

[john steele]

Eric, thanks. I will revise my post.

[Patrick S. O'Donnell]

Let's chalk it up to zealous ambition and wishful thinking (which, after all, does on occasion provide the requisite motivation to bring about the object of the wish!), and indeed best described as "a small, unfortunate incident in the course of a long and impressive legal career."

[Ajf 6]

Music world, in the mind is free, you can go to try!