Today, we’re pleased to publish a guest post from Boston attorney Sofia Lingos, who represents small businesses and entrepreneurs, as the principal of the Lingos Law firm. Sofia is also an adjunct professor at the Northeastern University School ofLaw. For more information about Sofia and her practice, visit her bio page at her website, as well the section of her website describing her firm’s legal services. Sofia, below, will provide the answer to a frequently asked question we receive here at LOMAP: Whether and when should an attorney file a d/b/a? If, after reading Sofia’s post, you determine that you have you have further questions, or more intricate needs, Sofia has been kind enough to offer to her new clients, who are also LOMAP clients, a 15% discount for a flat fee engagement or $50 off per hour for an hourly engagement. Sofia may be contacted via email at firstname.lastname@example.org, or via phone at (617) 695-0009.
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There are a number of different forms under which a law firm can operate in Massachusetts. Some considerations, for making the determination of which entity to choose, include: liability protection, tax treatment, administrative cost and internal organizational structure. Some of the myriad options for law firm corporate structures include: the sole proprietorship, the general partnership, the professional limited liability company (“PLLC”), the professional limited liability partnership (“PLLP”) and the professional corporation (“PC”). When forming a PLLC, PLLP or PC, you must register with the Commonwealth’s Secretary of State’s Office, in order to create an entity separate and distinct from yourself.
“Doing Business As” (D/B/A)
Though it’s a less formal process than registering for corporate status of some kind, the general rule is that sole proprietorships and general partnerships must register under Massachusetts General Law Chapter 110, Section 5 for a “doing business as” (D/B/A) certificate with the office of the clerk in every city or town where an office of the entity is located. That being said, each city and town regulates its own D/B/A registrations, and you should contact the clerk in your area to confirm the requirements. (There are only approximately 350 different City Clerks’ Offices in the Commonwealth . . .)
The specific language of the Statute reads, in pertinent part, that, “any person conducting business in the Commonwealth under any title other than the real name of the person conducting the business, whether individually or as a partnership, shall file . . .”. Up for interpretation is the definition of “real name”. Unfortunately, there is no case law interpreting this requirement; so, I went to the source: the all-knowing and experienced City Clerks’ Offices, where staff routinely accept and reject applicants and enforce business regulations. I posed this question to 5 separate city and town Clerks’ Offices: “If an attorney is operating a practice as Sofia S. Lingos, Attorney at Law, where my full legal name is included in the name of the business . . . Must I file a D/B/A?” The answers were relatively uniform, with one dissent.
A Sampling of Certain Massachusetts Cities and Towns
In Boston, the response was, “If you were Michelle Pfeiffer, and created and sold hats under the name ‘Michelle Pfeiffer’s Hats’, you would have to file for a D/B/A; so, yes, as an attorney conducting business, you must file.” Cambridge concurred, that filing was necessary, with the additional caveat that: it is not just a legal and licensing matter, but is related to consumer affairs, and the question of whether clients have access to all of the required information concerning a person with whom they are doing business. (Sound familiar?) From Acton, I received confirmation of the requirement for filing; but, the Acton office staff noted that there was no agency responsible for enforcement. Worcester, too, assented to the majority position, with the added consideration that filing would likely be a prerequisite
for opening a b
usiness bank account (though, in my experience, an Employer Identification Number (EIN) has been adequate — and, that’s free to get).
Then, there was Andover. Andover is the perfect example of why you mustcontact your city or town to ensure that your business is compliant with their regulations. In Andover, obtaining a business license is a two-step process. One must first obtain a letter of clearance from the Zoning Board. “But I operate out of my home . . .” you say. That is immaterial; and, there’s even an online form specifically for you. Once you are approved by the Zoning Board, you must then go to the City Clerk’s Office, where you can execute a short form, which the staff there would be only too happy to notarize. However, if you are operating under (Your Name), Attorney at Law. . . then, the Clerk’s Office personnel indicated that you do not need to obtain a D/B/A. You must file only if you are using a name that is separate and distinct from your own. (The Andover Clerk’s Office staff was unable to point me to any source that states this position definitively.)
So, do you need to file a D/B/A if you’re using your real name in commerce? It may just depend on where your business is located.
In order to file for your D/B/A, you must ensure that the proposed business name is not already in use. Some cities and towns, like Boston, may have a D/B/A database; but, where information is not available online, you’ll need to call, or make a physical appearance at, the appropriate Clerk’s Office. Cities and towns also vary as to whether or not they post their D/B/A application forms online. The application form is usually one page, featuring requests for basic information, including: the name of the business and the owners of the business, the type of business, the address of the business and other contact information. The application must be notarized.
The cost for filing seems to vary from approximately $20-$50 (though, according to Massachusetts General Law Chapter 262, Section 34 (20), the filing fee could be as low as $1), depending on the city or town; the application is valid for four years. More importantly, the fine for NOT filing for the appropriate license can be up to $300 per month for the time period during which the violation is occurring. For the nominal fee and minimal effort required to obtain a business license, the argument in favor of procuring said license far outweighs the cost.
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For more on entity choice, listen to Sofia’s podcast on the subject, also featuring Chiara LaPlume, another guest author on choice of entity issues for the LOMAP Blog. Our general resources post, covering choice of entity for lawyers, is available here. Finally, you can access Sofia and Chiara’s fantastic grid/chart, respecting features of the chief options for law firm entities, and their general resources guide, here.