Five 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.