For most of the last century, choosing a law firm name was a relatively simple endeavor. But a combination of factors in the legal marketplace over the last decade or two has increased the options and strategies that go into “What should we call ourselves?”
The ethical considerations involved typically fall under 7.5 (Firm Names and Letterheads) in the Rules of Professional Conduct (RPC). You still can’t violate 7.1 (Communications Concerning a Lawyer’s Services) by having a name that is deceptive or misleading. For example, you still can’t call yourself “John Doe & Associates” if there are no actual associates; go with the Law Offices of John Doe. Of course, you can continue to use 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.
You also cannot join forces in the naming of your law firm when sharing office space, suggesting that a handful of attorneys using a joint lobby, receptionist, or conference room are a law firm unless you are truly a legal entity—which could deceptively suggest that you are a bigger outfit or partners. Under 7.5, “Lawyers shall not state or imply that they practice in a partnership or other organization unless that is the fact.”
Of course, you still may not include the name of a lawyer holding a public office if they are not regularly practicing with the law firm.
Technology, Marketing, and Branding
The internet has impacted law firm names in a variety of ways. By making most directories and phone books (yellow and white pages) obsolete, there is no longer marketing value in having your firm name start with the letter A (or, as we’ll discuss momentarily, with a trade name such as the AAA Law Firm). We search in ways that are no longer tied to alphabetical listings. So the partner with a last name starting with the letter Z can move their name to the top.
There has also been a correlation between the shortening of law firm names and the creation and use of website domain names. The continuing trend of shortening a law firm name for branding purposes started with the creation of domain names that needed to be tighter—usually one name or two. The use of initials and abbreviations mostly went out the window as ineffective. At the same time, the legal name of most law firms remains the “original” ones with three and four names, plus the corporate structure designation. It is in the logo, brand, and e-mail/web addresses where the shortened name is front and center.
In a number of state bar ethics opinions, there is a noted differentiation between a law firm name and the use of domain names for marketing purposes. For example, your state may prohibit trade names, but still allow the use of domain names for marketing purposes. A state may prohibit you from calling yourselves the “Casino Law Firm,” but might still allow the use of the web address casinolaw.com. Names that are still prohibited under portions of 7.1 and 7.5—for both firm names and domain names—include superlatives such as “Best Law Firm” or an improper implied connection to a government, government agency, or with a public or charitable legal services organization. That has not changed.
Finally, the internet has stretched jurisdictional boundaries, allowing the formation of bigger, broader law firms that go beyond multiple states or countries. Under 7.5, “a law firm with offices in more than one jurisdiction may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.” In other words, ethical limitations still apply to marketing into a state where you do not have some combination of an office and/or a licensed attorney. Yet more and more law firms are trying to expand jurisdictional reach, made easier by technology and in some ways forced by clients—who also have increased their own reach while seeking to decrease the number of law firms they use, and expecting a firm to be able to handle matters across the board and across the country.
Battling the Trade Name Ban
Law firms that moved to a trade name awhile back started to find difficulties as mergers and growth led them to states where there was a trade name ban. This sometimes required a law firm to go with multiple names in multiple jurisdictions. For example, if you merged with a small boutique in a state that did not allow trade names, the firm would often need to go by a different name in that office location. Of course, Big Law firms are not going to be in the trade name business—they are more likely to be struggling with shifting and shortening names as they get bigger. But they are not likely to become the “New York M&A Law Firm.”
Two law firm types are most likely to utilize a trade name. First, there is the small law firm or boutique that is extremely focused on one practice or perhaps one location. Second, you have the virtual law firm that is not built on name partners or jurisdictional limitations. The virtual law firm is often then broken down into two distinct types, one of which is a corporate practice that is often the equivalent of Big Law without Walls; and the second is a consumer-facing practice looking to sell a niche practice nationally—from divorce to wills. It was a small law firm based in Utah that looked to battle the trade name ban as it sought to market a practice nationally.
In September, New Jersey became the latest state to clear the way for law firm trade names (after facing a constitutional challenge), jettisoning an old rule requiring that the name be accompanied by the full or last names of at least one lawyer at the firm. Firms were reminded, however, about the requirement that a trade name not be “misleading, comparative, or suggestive of the ability to retain results.” The notice to the bar also states that advertising, letterhead, and other communications still contain the name of at least one licensed New Jersey lawyer who is responsible for the firm. In other words, you must still have a state-licensed lawyer regardless of the trade name.
LawHQ is a law firm that operates in the niche space of telephone spam (boy, can I use that service in New Jersey!), where the Salt Lake City-based firm was seeking to engage attorneys in all 50 states. Attorney Thomas Alvord filed suit in nine states that still had trade name limitations–New Jersey, Georgia, Indiana, Mississippi, Nebraska, New York, Ohio, Rhode Island, and Texas. Most of those states have now removed the trade name ban, or it is in-process—an example of a single attorney successfully eliminating an outdated ethics rule in one fell swoop.
The attorney representing LawHQ is Washington, DC-based litigator Greg Beck, one of the foremost experts on commercial speech and lawyer advertising. Greg and I have shared the dais for law marketing ethics conversations dating back to 2007. The trade name ban was yet another bastion of ancient ethics rules in the profession. It’s been some time, but I would reach out to Greg when I felt a state bar was overreaching in the law marketing space.
Law firm names are just the latest area where marketing and ethics overlap—but with recent adjustments to the RPC and attitudes of the courts, attorneys are better positioned to take advantage of developing names in the marketplace that may better resonate with their client base.
About the Author
Micah Buchdahl is an attorney who works with law firms on marketing and business development and is a past chair of the ABA Law Practice Division. Micah is the associate editor of Law Practice Today’s Board of Editors. He can be reached at email@example.com or 856.234.4334, and on Twitter at @mbuchdahl.