One issue that’s in play is the matter of the prestigious Howrey name. A former Howrey lawyer in California said Winston might pay $2 million or more for the Howrey moniker. The goal had been to name the new firm Winston Howrey, but one lawyer told the Recorder that that price seemed low. “I actually think the Howrey name is worth more like $20 million in terms of client recognition and good will,” the lawyer said.
So what’s “Howrey” worth? Consider Bromberg & Ribstein on Partnership, §7.12(a):
If the partnership name is an ordinary trade name, in the absence of contrary agreement or deception of the public, all partners are entitled to use it and may not enjoin use by the other partners. Because the name itself is available to all, there is no appropriation of a partnership asset for which there is a duty to account, though the partners may have a duty to account for the goodwill of the firm that is related to use of the firm name. * * *
In some cases, continued use by any of the partners of a name that has been identified with particular people in the public mind may involve a fraud on the public by creating the appearance that a former partner remained with the firm. * * *
The treatise discusses in the notes litigation involving the names of some string quartets, the “Flonzaley Quartet” and the “Audubon Quartet.”
Since this is a law firm, professional rules apply. Rule 7.5 of the Model Rules:
(a) 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. * * *
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 contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.
So the question comes back to what “Howrey” signifies.
My theory (which is not necessarily reflected in current case law) is that the names of large law firm names used to mean more than they mean now because they were associated with a particular reputation which the firm built by monitoring, mentoring and screening its members. Now, with the Death of Big Law, it’s more likely the name is associated simply with a group of individuals.
So as Big Law dies, its name goes with it. What does it mean right now? $2 million or $20 million?