On review of an opinion of the Advisory Committee on Professional Ethics.
For affirmance and remandment -- Chief Justice Wilentz, and Justices Handler, Pollock, O'Hern, Garibaldi and Stein. Dissenting -- Justice Clifford. The opinion of the Court was delivered by O'Hern, J. Clifford, J., dissenting.
Lawyers and judges often ask, as did the playwright, "What's in a name?" Scholastic Sys., Inc. v. LeLoup, 307 So. 2d 166, 171 (Fla.1974); Brazeal v. Redburn, 638 S.W. 2d 771, 772 (Mo.App.1982); Farmers Ins. Co. v. State Farm Mut. Auto Ins. Co., 613 S.W. 2d 158, 161 (Mo.App.1981). Apparently a lot. At least, a lot of people think so. In this case, three attorneys seek to use their individual names to designate their professional association.
"Weiss, Healey & Rea" is the name under which an association of eight attorneys, all of whom are full-time employees of an insurance company, conducts business in Mount Holly, New Jersey. The record does not disclose whether their office is in the same building as the insurance company's. Joseph Weiss, characterized by petitioners as the "senior partner" of the group, is the insurance company's Regional Manager for Legal Services in New Jersey. In this capacity, he establishes office management policies and procedures, performs personnel planning and budgetary functions for the office, and handles some trial work. James Healey is the insurance company's senior trial attorney and heads a litigation team that handles the trial work in the southern portion of New Jersey. The third attorney, Thomas Rea, is the supervisor of a litigation team that handles all of the insurance company's trial work in the central part of the State. He also engages in the daily management of the office in the absence of Mr. Weiss.
The attorneys devote their time exclusively to the defense of the insurance company's insureds. Within the association, they cover for each other at pretrial and trial stages. They also share in strategy decisions. However, as full-time employees of the insurance company, the attorneys are not permitted to
represent members of the general public other than their own close relatives.
Petitioners share no profits or losses from their insurance-related activities. There is no written agreement among the eight attorneys, and all expenses incurred from the representation of the insureds are paid by the insurance company.
Petitioners requested an opinion from the Advisory Committee on Professional Ethics (ACPE) concerning the propriety of their use of the name, "Weiss, Healey & Rea." The ACPE held that the use of this name is proscribed by Rule of Professional Conduct (RPC) 7.5(d). Opinion 593, 118 N.J.L.J. 580 (1986).*fn1 The Committee stated that "attorneys who are not partners may not combine their names for an office designation that implies a partnership practice." Id. at 592. In their view, an invitation to partnership, as the most "appropriate means of recognizing achievements of professional staff," implies the respect of existing partners for an associate's skills, "sense of responsibility[,] and commitment to the practice of law." Id. Thus, Opinion 593 rejects as impractical, misleading, and inappropriate any attempt "to rebut the inference of partnership" by adding, at the end of the series of names that designates the firm, such disclaimers as "an association of attorneys"; "an association of attorneys, not a partnership"; "in house counsel for A.B. Corp."; and "litigation attorneys for policyholders of A.B. Corp." Id.
We granted the attorneys' petition for review of the ACPE's opinion. 107 N.J. 166 (1987). The New Jersey State Bar Association submitted an amicus brief supporting the ACPE. The American Insurance Association, whose membership consists of over 172 insurance companies, most of whom are
licensed to do business in New Jersey, filed an amicus brief arguing for reversal of ACPE Opinion 593. Because the problem posed extends beyond the eight attorneys in petitioners' group, we shall use the letters "A, B & C" as a generic shorthand for similar designations.
Preliminarily, we note that the question before us is not whether an insurer may provide in-house counsel for its insured. See Use of House Counsel by Insurance Companies to Defend Insureds, Opinion No. 23 of the Committee on the Unauthorized Practice of Law, 114 N.J.L.J. 421 (1984). Nor is the question whether the traditional form of partnership practice is the only manner in which legal services may be rendered. See In re Education Law Center, Inc., 86 N.J. 124 (1981) (public interest law firm organized as a corporation is not engaged in unauthorized practice of law); and Rule 1:21-1A (attorneys may form professional corporations to engage in the practice of law). Rather, the question is how the form of association involved here may be designated.
In recent examinations of proposed firm names, we have attempted to clarify the relationships between the private and public interests involved. Firm names, like trade names, are forms of commercial speech. Opinion 475, 89 N.J. 74, 82-83 n. 2 (1982).*fn2 As such, their use enjoys constitutional protection "only to the extent that it conveys facts which facilitate honest commercial transactions." Id. at 83. In Opinion 475, supra, 89 N.J. at 82, we found that because Leonard Jacoby and Stephen Meyers had never been licensed to ...