Navigating Professional Identity in Maryland: The Dilemma Presented by Post-Marriage Name Changes
While the popularity of taking on a spouse’s name has arguably waned over the years, it nonetheless remains popular: the PEW Research Center reported that only 20% of women in opposite-sex marriages ages 18 to 49 say they kept their last name, compared with 9% of those ages 50 and older. Further, 26% of married women with a postgraduate degree kept their last name, compared with 13% of those with a bachelor’s degree and 11% of those with some college or less education. Couples in same-sex marriages often change their names as well, and in some instances, couples in opposite-sex marriages both adopt a new name after marrying.
As such, it stands to reason that many attorneys in Maryland face the dilemma of whether to change their name after they marry and, if so, what implications that decision has for their careers.
The question of whether a married Maryland attorney can legally change their name but continue to practice under their pre-marriage name has no doubt been contemplated by many Maryland attorneys, but it does not appear that definitive guidance on the matter exists.
Guidance from Other States:
Other states presented with the question of whether a married attorney can practice under their pre-marriage name after adopting their spouse’s name have varying responses, but all urged strict compliance with the rules of ethical and professional responsibility.
The New York State Bar Association’s Committee on Professional Ethics addressed the issue of whether an attorney, admitted under a specific name, can use a different first name for business cards, informal communications, and a law firm website. While the inquiry involved an attorney with a Polish first name listed on the official Roll of Attorneys, seeking to use an English translation of the name for simplicity in informal communication, the opinion noted that in N.Y. City 638 (1943), the ethics committee concluded that it was ethically permissible for an attorney who had been admitted to practice under her “married name” to use her “maiden name” in the practice of law.
The Committee concluded that, according to the Rules of Professional Conduct, an attorney may use a different first name as long as it is not misleading about the attorney’s identity. They emphasized compliance with applicable statutes, court rules, and guidelines governing attorney registration and name changes. The opinion cited Rule 7.5(b), which prohibits practicing under a misleading name, and Rule 8.4(c), which prohibits dishonest conduct.
Arizona had a less permissive response to the issue. In Opinion 12-02, the Arizona State Bar Association’s Committee on the Rules of Professional Conduct addressed the ethical considerations of lawyers adopting different names for various purposes under ER 7.1, which prohibits lawyers from making false or misleading communications about themselves or their services.
In the first scenario, an Arizona lawyer who intended to marry planned to continue practicing law under her pre-marriage name while adopting her married name for personal and social purposes unrelated to her legal practice. The Committee stated that a lawyer who practices law under a name materially different from that which appears on the records of the State Bar makes a statement about themselves that is at least misleading. The Committee noted that if a lawyer desires to change the name under which they practice law, the lawyer must follow the applicable procedures for effecting such change of name on the records of the State Bar. The opinion clarified, though, that a lawyer engaged in non-legal activities, such as writing novels, can adopt any name for those pursuits, provided there is no fraudulent or improper motive.
The Texas Disciplinary Rules of Professional Conduct expressly address the issue of whether a married woman can practice under her pre-marriage name. Specifically, Rule 7.01 states that:
A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the names of a professional corporation, professional association, limited liability partnership, or professional limited liability company may contain “P.C.,” “P.A.,” “L.L.P.,” “P.L.L.C.,” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Nothing herein shall prohibit a married woman from practicing under her maiden name. (emphasis added)
The North Carolina State Bar offers advice on the issue as well, noting attorneys who have built their professional reputation under their pre-marriage name and are now marrying can continue to practice law using their pre-marriage name even if they change their surname on personal identifiers like their driver’s license and Social Security card. The Bar notes that Rule 7.1 of the North Carolina Rules of Professional Conduct allows for the professional use of a pre-marriage name as long as it is not fraudulent, false, or misleading, but Rule 7.1 does not contain provisions specifically addressing the use of pre-marriage names. The North Carolina Bar cautions that it is essential for attorneys to consistently use pre-marriage maiden name in all professional documents and, if needed, clarify the dual usage to avoid confusion.
The North Carolina Bar also recommends that attorneys who decide to practice under their pre-marriage name continue being listed with the State Bar under their pre-marriage name to prevent confusion. It cautioned, though, that searches under an attorney’s married name on the State Bar’s website may not yield results, and inquiries using an attorney’s married name may face difficulty locating your record in the State Bar membership database.
Considerations for Maryland Attorneys
The absence of explicit guidance from MSBA Committee on Ethics leaves room for interpretation within the framework of the Maryland Attorney’s Rules of Professional Conduct. Rule 19-307.1, which addresses communications concerning a lawyer’s services, does not directly tackle the issue of practicing under pre-marriage or married names—it merely prohibits false or misleading communication. As explained in Rule 307.1, a communication is false or misleading if it contains a material misrepresentation of law or fact, omits a fact necessary not to make the statement misleading, or is likely to create an unjustified expectation about results the attorney can achieve. No other Rules address whether a Maryland attorney can practice under a maiden name.
MSBA reached out to a Maryland attorney who sought guidance from the MSBA Committee on Ethics regarding the issue of whether an attorney could practice law under her married name in the Spring of 2022. She was ultimately advised that she was permitted to practice under her former name as it was not misleading due to the fact that she legally used that name previously. While this guidance was not formalized in an Ethics Opinion, it sheds light on the issue, and arguably allows married people to practice under their pre-marriage name.