… Do not use a fictitious business
name (d/b/a) that is false, misleading, or deceptive. While this statement is
easily understood, some may advertise and thus hold themselves out in a manner
that they may not consider or know is misleading. For example, if an individual
practitioner holds herself out as Mary Doe (intended to be fictitious) and
Associates, when in fact Mary Doe is a sole proprietor, this name and
advertisement is misleading. There may be other private practitioners who have
their offices in the immediate vicinity, but they may all be sole proprietors –
thus, they are not actually part of Mary Doe’s business, as the term “and
Associates” indicates.
Use of the word “Corporation,” or
“Inc.,” or “LLC” would be false and misleading if there is not a lawfully
formed corporation or limited liability company, as the case may be. In some
states, a limited liability company is not permissible for specified health
care practitioners. I have occasionally seen fictitious business names that
included words such as “medical,” “psychology,” and “institute,” each of which
raised my concerns. Of course, each situation is different and state laws will
vary.
Issues may also arise with respect to
some “counseling centers” that hold themselves out as distinct business
entities (e.g., the XYZ Counseling Center or the Minor Street Counseling Center).
Who owns the XYZ Counseling Center? Sometimes, the answer I have received is
“no one. We are all individual practitioners and we just use the name of the Center.”
I typically ask whose name or names are on the fictitious business name
statement that was filed. Presumably, or at least arguably, the owner(s) of the
business is the person (or persons) who signed the statement. He or she (they)
may incur liability, depending upon the circumstances, for the negligent acts
of the others who hold themselves out as employees of the Center, or perhaps,
as partners or co-owners.