September 1998

Ethics And The Law
Using a Trade Name for Your Law Practice

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author's and are not official or unofficial WSBA positions.

Washington's Rules of Professional Conduct (RPCs) have generally prohibited a lawyer from using a trade name in private practice. The Washington Supreme Court recently amended RPC 7.5(a), however, effective September 1, 1998, to permit use of a trade name. This article looks at the prior and amended rules, and then more generally considers the use of trade names by lawyers.

Before being amended, RPC 7.5(a) restricted your ability to use a trade name other than one incorporating the names of lawyers connected with your practice, or a name using the words "legal clinic" (if that, in fact, described your type of practice) with an optional geographical designation, or a name including deceased or retired partners. It provided:

A trade name may not be used by a lawyer in private practice except that the use of the words "legal clinic" may be used alone or in conjunction with a geographical designation or the name of one or more of the lawyers connected with the practice so long as the name is not otherwise in violation of rule 7.1 and except 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.

If your name were Sarah Doe, your deceased partner were Jill Morton, and you practiced law in Ritzville, Washington, with your remaining partner, James Smith, you could practice, for example, under the name of "Doe, Morton & Smith," "Law Offices of Doe, Morton & Smith," or "Ritzville Legal Clinic" or "Doe, Morton & Smith Legal Clinic."

For constitutional purposes, a trade name is a form of commercial speech. Bates v. State Bar of Arizona, 433 U.S. 350 (1977) recognized a lawyer's right to commercial free speech and permitted lawyer advertising. Although in 1979 the Court rejected a constitutional challenge to a prohibition on the use of trade names in professional optometry services, Friedman v. Rogers, 440 U.S. 1 (1979), that case is of questionable authority today given the progressively greater protection given to commercial speech in the interim. See, for example, Central Hudson Gas & Elec. v. Public Service Commission of New York, 447 U.S. 557 (1980); Zauderer v. Office of Disciplinary Counsel of the Supreme Court of Ohio, 471 U.S. 626 (1985); and 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996). Thus, the former RPC 7.5(a) prohibition on use of a trade name was arguably open to constitutional challenge on the basis of unduly restricting free speech. In addition, during those years, multi-jurisdictional practice by lawyers has become more common, significantly increasing the likelihood of conflicting obligations between Washington's and other jurisdiction's ethics rules.

The WSBA RPC Committee recommended to the WSBA Board of Governors in April 1997 that RPC 7.5(a) be amended to permit lawyers generally to use trade names. In June 1997, the Board examined the recommendation, held a public hearing, and voted unanimously to approve it. In October 1997, the WSBA submitted the recommendation to the Supreme Court, which adopted it on June 4, 1998, effective September 1, 1998. Supreme Court Order No. 25700-A-624.

Amended RPC 7.5(a), which replaces former RPC 7.5(a), states:

A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1 or Rule 7.4. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or charitable legal services organization and is not otherwise in violation of Rule 7.1 or Rule 7.4.

Washington's RPC 7.5(a), as amended, is now identical to Rule 7.5(a) of the American Bar Association's Model Rules of Professional Conduct, except that in addition to the Model Rule's references to Model RPC 7.1 (false and misleading communications), Washington's rule adds references to Rule 7.4 (communication of claims of practice) not found in Model RPC 7.5(a).

Under the amended RPC 7.5, if you are in private practice, you may now use any available trade name you wish, subject to four ethical restrictions, each of which is intended to protect the public from being misled. First, the name may not improperly imply a connection with a government agency or charitable legal services organization. Second, the name may not violate RPC 7.1 by being a false and misleading communication regarding your services. Third, the name may not violate RPC 7.4, which permits you to state whether you practice, or do not practice, in a particular field of law, but restricts your ability to state or imply that you are a specialist. Fourth, you must still comply with the other provisions of RPC 7.5(b), (c) and (d), discussed below, and your other ethical obligations. Otherwise, you are free to use your imaginative marketing skills in selecting a trade name. There is no requirement that your trade name be dignified, politically correct or tasteful.

Amended RPC 7.5(a) deletes the explicit authorization of former RPC 7.5(a) to include in a firm 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." The provision largely restates the common law. Its deletion should not affect the continued use of such names under amended RPC 7.5(a); instead, such use is now included within the broad authorization to use trade names and simply remains subject, as it did previously, to the provisions of RPC 7.1 and RPC 7.4. See ABA Informal Opinion 85-1511 (March 26, 1985), and New York State Ethics Opinion 45 (1967). Use of a trade name made up of the names of one or more deceased or retired partners, even if otherwise permitted by common law, may still be prohibited, however, if it is misleading or deceptive in violation of RPC 7.1, discussed below.

A firm's right to use in its name the names of deceased or retired partners is not unlimited. You may not name a firm after a deceased lawyer who has never been a partner in the firm. ABA Informal Opinion 730 (1963). You may not continue to use a former partner's name in the firm name when the partner has left the firm to establish his or her own practice, or to practice in another firm. WSBA Informal Opinions No. 1144 (September 18, 1987), and No. 1486 (July 29, 1992). (WSBA informal opinions merely reflect the opinion of the RPC Committee, are not individually approved by the WSBA Board of Governors, and do not reflect any official position of the WSBA.) A law firm may continue to use a deceased partner's name in the firm name, however, even though a different attorney with the same name has left the firm for his or her own practice. WSBA Informal Opinion No. 1871 (April 12, 1994). Where a named partner in a firm dies and the firm then dissolves and breaks into two separate firms, one firm, but not both, may continue to use the deceased partner's name if there is substantial continuity of membership, clientele and professional practice, if the new firm is legally or contractually entitled to use the deceased partner's name, and if the use of the name is not misleading. See New York State Bar Association Committee on Professional Ethics, Opinion 622 (1991).

Although there is no direct authority in Washington, if a named partner is suspended from the practice of law, the firm must probably drop the suspended lawyer's name from the firm's name and communications, including its letterhead, during the period of suspension. Board of Overseers of the Maine State Bar, Opinion 132 (1993). Washington's RPCs and Rules for Lawyer Discipline (RLDs) would probably dictate the same conclusion regardless of whether the suspension is due to nonfulfillment of CLE requirements, nonpayment of licensing fees, or discipline, although arguably a distinction could be made between RLD 8.1(a) disciplinary suspensions for more than 60 days and RLD 8.1(c) suspensions for 60 days or less. A similar conclusion applies if the lawyer is disbarred, since Washington's RPC 5.4 prohibits a partnership with a nonlawyer, RPC 5.5 prohibits assisting a nonlawyer practice law, and Rule 1.1(h) of Washington's Rules for Lawyer Discipline subjects a lawyer to discipline for "[p]racticing law with or in cooperation with a disbarred or suspended lawyer . . . or permitting a disbarred or suspended lawyer to use his or her name for the practice of law." See WSBA Formal Opinion 184 (1990) and RLD 8.2.

Does a firm's trade name say anything about its resources and thereby become misleading when the resources change? For example, if a firm once had six named partners, all but two of whom died or retired, under common law it appears the two remaining partners could continue to use the full partnership name. Does the same rationale apply if there is only one "partner" left, who is now effectively practicing as a sole proprietorship? Does the six-lawyer name imply a multiplicity of lawyers and thereby become deceiving now that there is only one "partner" left? Does it matter if the surviving "partner" hires associates so that there are in fact a number of lawyers available to serve clients? WSBA Formal Opinion 178 (1984) opines that "[i]t is inherently misleading for a sole practitioner to use the term 'and associates' when there are in fact no associates. . . . The use of the term 'and associates' in a firm name implies that the named lawyer or lawyers have other attorneys working for them . . . ." Alabama Ethics Opinion RO-93-14 reaches the same conclusion. Referencing WSBA Formal Opinion 178, WSBA Informal Opinion No 1764 (August 14, 1997) opines that where a lawyer's only partner retires and leaves only the one lawyer practicing in the firm, the lawyer may not continue to use the name "Doe and Doe, P.S." while practicing as a sole practitioner since "it suggests that more than one attorney is practicing in the law firm." If the lawyer hires an associate, can the lawyer continue to use the partnership name? A prior informal opinion opines that a lawyer may not continue to use a former partnership name where the lawyer's only former partner was now employed as an associate, but could continue to use the name if both former partners were now shareholders in a professional corporation. WSBA Informal Opinion No. 1231 (August 2, 1988). Does the rationale of these opinions imply that the last surviving partner of a partnership (who is thereby a sole proprietor), may no longer use the trade name "Dead, Retired & Living"? If it does, the rationale in effect removes much of the value of using a trade name, namely, the good will associated with that name. Or, can the surviving lawyer use the name but carefully disclose on the letterhead that he or she is the only practicing attorney in the firm?

RPC 7.1 prohibits false and misleading communications about a lawyer's services. A communication is false and misleading if it (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the RPCs; or (c) compares the lawyer's services with those of other lawyers, unless the comparison can be factually substantiated.

(a) Misrepresentations/Omissions: Although amended RPC 7.5(a) deletes the explicit authorization of former RPC 7.5 to use the term "legal clinic," it appears clear that the term may continue to be used if it is not otherwise misleading. The Supreme Court in Bates v. State Bar of Arizona, 433 U.S. 350 (1977) held there was nothing inherently misleading in using the term "legal clinic" as part of a trade name for a firm which in fact charges low rates for standardized services or renders pro bono services. A similar result was reached in Jacoby v. State Bar of California, 562 P.2d 1326, 1331 (Cal. 1977). Connecticut Bar Association Committee on Professional Ethics Opinion 89-15 (1989) permitted a lawyer with an office on Wall Street to use the trade name "Wall Street Legal Clinic" or "Wall Street Legal Services," but opined that the lawyer should include a disclaimer that the firm was not a publicly sponsored legal aid agency. The trade name "Shannon and Johnson's Hollywood Law Center" was also found to be a permissible trade name. In re Shannon, 638 P. 2d 482 (0r. 1982). The Dallas Bar Association in its Opinion 1981-4 (March 20, 1981) concluded that lawyers could not advertise (use as a trade name) a 24-hour jail release service as "Lawyer's Writ Service."

A legal clinic with a trade name of "Starbucks Legal Clinic" or "Boeing Legal Clinic" would likely be deceptive in implying an association with those companies, would thus violate RPC 7.1, and thereby would be prohibited under amended RPC 7.5(a). Similarly, a private law office with a name such as "United States Legal Office" or "Washington State Legal Office" or "Washington Law Center" may be both directly prohibited by amended RPC 7.5(a) as improperly implying a relationship to the government, and may also violate RPC 7.1 as being misleading. In In re Shepard, 92 App.Div. 2d 978, 459 NYS 2d 632 (1983), the court found "Peoples Law Firm" was deceptive because it falsely implied a public connection. Similarly, Mezrano v. Alabama State Bar, 434 So.2d 732 (Ala. 1983), found the trade name "University Law Center" was misleading, even though it was located on University Avenue, because it had no official connection with the nearby University of Alabama.

(b) Unjustified Expectations and Non-Factual Comparisons: Names such as "A-1 Legal Clinic" and "Blue Ribbon Legal Services" might be questionable as implying a difference from other lawyers which cannot be factually substantiated. See Hazard & Hodes, The Law of Lawyering, Second Edition, §7.5:203. Similarly, Iowa State Bar Formal Opinion 92-36 opines that inclusion of a lawyer's name in the publication "The Best Lawyers in America" violates the ethical rules and that a lawyer whose name appears therein is required to take affirmative steps to have the name removed. Medina County Bar Assn. v. Pierre A. Grieselhuber, 78 Ohio St. 3rd 373, 678 N.E.2d 535 (May 14, 1997) found a lawyer's maxim "We do it well" a non-verifiable comparison. Would the same rationale apply to use of "acme," "superior," "supreme," "highest," "ultimate," "pinnacle," "stellar," or other comparative terms, since each implies a difference which cannot be factually substantiated? Would the use of such words equate the firm with specialists such that in a malpractice suit the standard of performance for everything the firm does must meet the higher standard of an expert rather than the standard of a general practitioner? Would the rationale also apply to names such as "Mt. Everest Legal Services" or "Mt. Rainier Legal Services"? What about the use of names such as "Christian Legal Services" or "Jewish Law Offices" or "Islamic Legal Clinic," or statements that the lawyers practice law "in a Christian [or Jewish, or Islamic] manner"? Are such names or claims deceptive? Can such implied differences be factually substantiated?

Do such names also give rise to unjustified expectations about the results that a lawyer can achieve? Can we use as trade names "Sharks R Us Legal Services" or "Sharks 4 U Law Offices" or "Piranha Litigators" or "Junk Yard Dog Lawyers" or "Bulldog Attorneys"? Do such names also create an unjustified expectation about results the lawyer can achieve? In your bitterly contested litigation, do you want to be represented by "Hummingbird Legal Services" or by "Mad Dog Lawyers"? Can lawyers at "Pit Bull Law Clinic" ever compromise and reach a settlement without belying their name? Does "Atomic Legal Services" falsely promise something a lawyer cannot deliver? If you use a trade name implying aggressiveness, must you always be aggressive to avoid misleading clients and incurring a malpractice or consumer protection suit? If you and your partner call yourselves "Two Hungry Lawyers," can that be factually substantiated? If you are successful, must you forever starve yourselves to avoid deceit?

(c) Restrictions On Names Claiming Specialization: The authorization of RPC 7.5(a) to use a trade name requires the trade name not violate RPC 7.4. That rule generally prohibits communications that state or imply that a lawyer is a specialist, but permits communications about the fact that a lawyer does or does not practice in particular fields of law. Thus, a trade name which implies specialization is likely to violate both RPC 7.4 and RPC 7.5(a), but one which merely indicates the area of practice will not. But where is the line between the two?

A series of WSBA RPC Committee informal opinions give a sample of some trade names that were in the past opined to be prohibited: "Medical-Legal Consultants of Washington" (Informal Opinion No. 837, November 11, 1986); "AAA Divorce Services, a service of John Doe, Attorney" (Informal Ethics Opinion No. 1244, September 30, 1988); "Maritime Law Offices" (WSBA Informal Opinion No. 1280, March 30, 1989); "Real Estate Hot Line" (Informal Opinion No.1474, May 8, 1992), and "Accident Hot Line" (Informal Opinion No. 1479, May 27, 1992). All of these were found violative at a time when trade names generally were prohibited. Would they be found violative now? Do the names imply specialization or merely areas of practice? Suppose you used the trade name "The Divorce Lawyer" or "The Bankruptcy Lawyer" or "The Personal Injury Lawyer," and that in each case you, in fact, limited your practice to the specified area. Do these names imply specialization or areas of practice?

ABA Formal Opinion 94-388 (1994) clearly prohibits a law firm's use of a franchise name (lawyers using a common law firm name but not being partners or having any control or responsibilities over each other) as a misrepresentation and violative of Model RPC 7.1 and 7.5(a) unless all the firms using the name are in fact part of the same firm and satisfy the Model RPC 5.1 and 5.3 requirements of partners being responsible to oversee the affairs of their partners and persons under their supervision. Ohio Board of Commissions Ethics Opinion No. 97-1, 1997 WL 85762 (Feb. 14, 1997) similarly opines it is improper under Ohio ethics law for attorneys to practice law in Ohio under a common trade name franchised to attorneys across the country, with the Commissioners stating that they "resolutely" believed that legal professionals cannot promote themselves as Century 21 does in the real estate market. A similar result was reached in Michigan Bar Opinion RI-130 (April 27, 1992). Although Washington's RPC Committee has opined that a law firm could display the logo of a specified law firm association on its letterhead if the display and any brochures describing the association were not misleading or deceptive, WSBA Informal Opinion No. 1215 (June 28, 1988), and although there is no direct Washington authority prohibiting a lawyer from practicing under a franchise name, use of a franchise name would likely be ruled deceptive and violate RPC 7.1 and 7.5 and the rationale of the ABA opinion.

Amended RPC 7.5(a) states that (emphasis added) "a trade name may be used . . . ." Does this mean you can practice under only one trade name, or are multiple trade names permitted? If you were to use multiple trade names, is the mere multiplicity deceptive and misleading? Is the failure to disclose multiple names to clients and potential clients the omission of a fact necessary to make the statement (namely, the name of your practice) materially misleading? If you operated under 50 trade names and took out advertisements in the yellow pages for each, would not the average consumer likely be deceived and believe that each trade name was a separate law practice? While RPC 7.2(d) requires that an advertisement of legal services include the name of at least one lawyer responsible for its content, would it be misleading for a multi-lawyer law firm not to specify that the same law firm is behind all of the advertisements? It is also unclear whether a law firm could operate its different departments under different trade names, using one name, for example, for its family law practice and another for its corporate or criminal law or litigation practices. Professional Ethics Committee of the Florida Bar Association Opinion 94-6 (1995) opined that a law firm may not use the trade name of "Sunshine Mediation" for its mediation department because the trade name must be used in all aspects of the firm's practice; it is not clear whether the name would have been acceptable in Florida if the firm did only mediation. The name might still be troublesome in Washington, however, as claiming a specialization.

The recent amendment of RPC 7.5(a) has not changed any of the other provisions of RPC 7.5. If your Washington law firm has out-of-state offices, RPC 7.5(b) allows you to use the same name in each jurisdiction, but still requires that each office must identify the jurisdictional limitations of lawyers not licensed to practice in the jurisdiction where the office is located. If your letterhead lists all your partners, some of whom are not admitted in Washington, you need to indicate where they are admitted (usually done with parentheticals or asterisks). The conclusion of the WSBA RPC Committee in WSBA Informal Opinion No. 1690, August 13, 1996, that RPC 7.5(a) and (b) must be read together remains correct, although its conclusion that the use of a trade name in Washington by a multi-state law firm would be in violation of those rules has been superseded now by the amendment to RPC 7.5(a) permitting such use.

RPC 7.5(c) still prohibits your firm from using your name as part of its name if you are holding public office during any substantial period in which you are not actively and regularly practicing with the firm. Thus, if you were a named member of the firm and were elected or appointed to a public office, your firm would not be able to continue using your name as part of the firm name during the time you hold public office. This rule applies only to holding a public office on a substantially full-time basis, and would not apply, for example, if you held public office on a part-time basis but continued practicing law, or if you took an extended leave of absence to serve as an executive with a private corporation. If you are absent from the firm for a substantial period and are not practicing law, however, even though RPC 7.5(c) might not require you to delete your name from the firm name, RPC 7.1(a) might suggest not doing so was a deceptive communication.

RPC 7.5(d) still allows you to state or imply that you are practicing in a partnership or other organization only when that is the fact. If you are practicing out of the same office, but are not a partner, shareholder of a professional corporation, or a member of a professional limited liability company or partnership, you may not join your name together with the names of others in the office. Instead, each of you must have separate letterheads, cards and pleading paper, and each of you must sign your name individually at the end of all pleadings and correspondence and not in conjunction with the names of other lawyers, unless, however, you are employees or "of counsel" to another such person or entity. Thus, if you are a sole practitioner and share office space with another, you cannot list yourselves as "Law Offices of Doe & Smith" on the door/lobby or use common letterhead or professional cards; instead, you must still each have separate letterhead and cards, and the door/ lobby listing must be separate ("Law Office of Doe" and "Law Office of Smith"). WSBA Informal Ethics Opinion No. 1466 (March 20, 1992) opined that use of the trade name "Eastside Law Offices" by office sharers was an improper trade name and was misleading because it implied more than office sharers; under amended RPC 7.5(a), however, it would appear that trade name would be permissible if used by a partnership, although not by lawyers merely sharing office space.

If you are a sole practitioner, RPC 7.5(d) still prohibits you from practicing under the name "John Doe & Associates," unless you, in fact, regularly have lawyer employees; similarly, you may not use the term "of counsel" unless you are an active WSBA member and have a close, that is, regular and frequent, continuing relationship with a lawyer or law firm, for example, as a retired or semi-retired former partner who remains available to the firm for consultation and advice. WSBA Formal Opinion 178 (1984) concludes that attorneys who are not partners may not hold themselves out as partners by using the term "law offices," that it is inherently misleading for a sole practitioner to use the term "and associates" when there are in fact no associates, and that the "of counsel" designation can be used only in limited circumstances (including that the lawyer must be an active WSBA member having a close, regular, frequent and continuing relationship with the lawyer or law firm). WSBA Informal Opinion No. 1613, February 16, 1995, similarly opines that lawyers may not join names as a professional service corporation while in all other respects acting as sole practitioners.

WSBA Informal Opinion 1656, March 21, 1996, opined that under RPCs 7.1, 7.5(a), and 7.5(d), use of a trade name such as "____ & Company" was prohibited unless there was further explanation of the organizational structure of the law practice, while WSBA Informal Opinion 1657, March 21, 1996, opined that "a professional limited liability company must not refer to itself as either a 'firm' or a 'company', but must refer to itself as either a 'professional limited liability company' or a 'P.L.L.C.'", and that, "[f]urther, to comply with RPC 7.5(d), the name must say 'P.L.L.C., which consists of individuals and professional services corporations' if that is the nature of its organization." It would appear that under the amended RPC 7.5(a), it will be permissible to use the terms "firm" or "company" provided that appropriate disclosure is made of the structure of the firm.

If you plan to use a trade name, you will need to register it with the Washington Department of Licensing pursuant to RCW 19.80.010. Under RCW 19.80.005(1), a trade name includes any name used to identify a business (which is defined to include a profession) which (a) is not, or does not include, the true and real name of all persons conducting the business, or (b) which suggests additional parties of interest, such as "company," "and sons," or "and associates." If you fail where required to register a trade name, RCW 19.80.040 will prohibit you from instituting any suit, for example, for unpaid legal fees, until you have registered the trade name; the failure to register does not, however, invalidate the underlying fee/retainer agreement, and once you register it you would be able to institute such suit.

Aside from registration of the trade name, you would also want to be careful not to unlawfully infringe on someone else's trade name since such infringement is subject to statutory penalties as an unfair or deceptive practice (see RCW 19.86.020) and may also subject you to the Consumer Protection statute (RCW 19.86). The use or infringement of a trade name would likely be included within the "entrepreneurial aspects" of law subject to that statute. See Short v. Demopolis, 103 Wn.2d 52 (1984); Quinn v. Connelly, 63 Wn. App. 733, 742 (1992), review denied 118 Wn.2d 1028. See 107 Wn 2d 735.

With Washington lawyers now authorized to use trade names, it may be appropriate to review your internal conflicts-checking systems to assure that you have appropriate systems in place to identify possible conflicts so as to comply with the RPCs. Since most systems likely already take into consideration the name of a lawyer's law firm, it is not likely that many changes will be needed.

Before using the trade name, you may also want to seek an informal opinion from the WSBA's RPC Committee as to the propriety under the RPCs of your selected name. Requests for such opinions should be addressed to the Committee in care of the WSBA Professional Responsibility Counsel.

Amended RPC 7.5(a) allows us to practice law using a trade name beyond merely the names of our partners. Most of us spend our careers building our name and reputation, and for most of us the only name we want to practice under is our own and that of our partners. We were proud to become lawyers, we are proud to be lawyers, and it is our name, not some trade name, that we want our clients to remember when they need our personal professional services. For many of the nostalgic, the use of any name other than our own, or our partners' name, will be a reluctant manifestation and acknowledgment that perhaps the practice of law is increasingly a trade, and less a profession. For the entrepreneurial minded, amended RPC 7.5(a) permits flexibility, creativity and marketing opportunities. If you decide to use a trade name, choose it carefully to attract and retain clients and to comply with the ethics rules and the consumer protection laws. You will likely be living with it for years.