AVOIDING LIABILITY BLOG

Fictitious Business Names

February 2012

… 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.

ABOUT THE AUTHOR

Richard Leslie: Avoiding Liability Bulletin

"At the Intersection of Law and Psychotherapy" Richard S. Leslie is an attorney who has practiced at the intersection of law and psychotherapy for the past twenty-five years. Most recently, he was a consultant to the American Association for Marriage and Family Therapy (AAMFT), where he worked with their various state divisions to develop and implement their legislative agendas. He also provided telephone consultation services to AAMFT members regarding legal and ethical issues confronting practitioners of diverse licensure nationwide. Additionally, he wrote articles regarding legal and ethical issues for their Family Therapy Magazine and presented at workshops on a variety of legal issues. Prior to his work with AAMFT, Richard was Legal Counsel to the California Association of Marriage and Family Therapists (CAMFT) for approximately twenty-two years. He was director of Government Relations for CAMFT, and as such was the architect of CAMFT’s widely regarded and successful legislative agenda. He represented CAMFT before the regulatory board (the Board of Behavioral Sciences) and was a tireless advocate for due process and fairness for licensees and applicants. He was a regular presenter at workshops and was consistently evaluated as CAMFT’s most highly rated presenter. He also sat with the CAMFT Ethics Committee and acted as their advisor on matters pertaining to the enforcement of ethical standards. Richard is an acknowledged expert on matters pertaining to the interrelationship between law and the practice of marriage and family therapy and psychotherapy. For many years, he taught Law and Ethics courses for a number of colleges and universities in their marriage and family therapy degree programs. While at CAMFT, he provided telephone consultation services with thousands of therapists in California and elsewhere for over twenty years. He is highly regarded for his judgment, his expertise, his direct style, and his clarity. Richard has been the driving force for many of the changes and additions to the laws of the State of California that affect MFTs. In 1980, he was primarily responsible for achieving passage of the "Freedom of Choice Law" that required insurance companies to pay for psychotherapy services performed by MFTs. Passage of that law allowed MFTs to earn a living, allowed them to better compete in the marketplace, and strengthened the profession in California by leading to a great increase in the number of licensees and CAMFT membership. Currently, about half of the licensed marriage and family therapists in the country are licensed in California. While at CAMFT, Richard was primarily responsible for, among other things, the successful effort to criminalize sex between a patient and a therapist. He was successful in extending the laws of psychotherapist-patient privilege to MFTs, thereby giving patients the same level of privacy protection as when seeing a psychiatrist or psychologist. He fought tirelessly and successfully for the right of MFTs to refer to themselves as "psychotherapists," to perform psychological testing services, to be appropriately reimbursed by California’s Victims of Crime Program, and to be employed in county mental health agencies throughout California. Richard was admitted to the Bar in New York (1969) and in California (1973). While practicing in New York, he served as a public defender, and later, as an Assistant District Attorney. Shortly after moving to California, he worked for the San Diego County Human Relations Commission as their Law and Justice Officer. While there, he worked successfully to achieve greater racial diversity in the criminal jury selection system and to expose and stop police abuse. For such work with that agency, he was the recipient of the Civil Libertarian of the Year Award by the San Diego Chapter of the American Civil Liberties Union.

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