By Lazar Emanuel [Originally published in NYPRR August 2011]
Since April 29, 2011, questions raised by practitioners have prompted four Ethics Opinions from the State Bar on issues related to lawyer advertising and the use of firm names. These opinions are in addition to Opinions #850 and #853, which I discussed in my article for the June 2011 issue of NYPRR. Opinions #850 and #853 dealt with the question: May a law firm continue to use in its name the name of a member who leaves the firm to become general counsel to a corporate client? If you read the article, you know that the answer is “No.” A law firm may not include in its name the name of a lawyer who has left the firm to practice actively in another legal capacity.
The new Ethics Opinions, and some of the questions they ask and answer, are:
1. Opinion #861, 4/29. May a New York lawyer who is of counsel to an out-of-state law firm operating under a trade name permitted in that state open a New York office using the same trade name? The answer: No. The question was made relevant by the difference between New York Rule 7.5(b), which provides “A lawyer in private practice shall not practice under a trade name,” and ABA model Rule 7.5(a), which proclaims the right of a lawyer “in private practice” to use a trade name if it does not imply a connection with a government agency or with a public or charitable legal services organization. Opinion #861 advised: “a New York firm could not operate under the name XYZ Law Group because XYZ Law Group, under these facts, is a trade name.”
2. Opinion #869, 5/31. Two questions: (i) may a New York law firm include in its name the area of law in which it practices (e.g., tax law); and (ii) may a solo practitioner use the word “firm” with his name (i.e., the John Smith law firm). The answer to question (i): “Apart from the context of firm names, lawyers are generally permitted to identify their practice areas. …Law firm names, however, are subject to more stringent regulations than the regulations that govern advertising. …The prohibition against trade names is broad, permitting little beyond the names of lawyers presently or previously associated with the firm. …Precedents from this Committee confirm the breadth of the trade name prohibition.” (The answer to question (ii), not essentially relevant to this article, was “Yes.”)
The Committee in Opinion #869 relied on a statement in N.Y. State 740 (2001).
“Using a name that is not the legal name of one or more partners or former partners in the law firm constitutes use of a trade name” within the meaning of the predecessor to Rule 7.5(b).
Why do we as lawyers fail to define the term “trade name” in the same way as everyone else? Why not simply acknowledge that a lawyer’s name is his trade name, and that a law firm’s name is its trade name. It’s interesting to me that the term “trade name” is never defined in either the Code or the Rules. Nor in the old ECs or the current Comments. Not even in Rule 1.0, Terminology, which does define 24 different terms, including “firm” or “law firm,” but omits a definition of trade names.
What is a trade name after all? Webster’s New World College Dictionary defines it as:
The name by which a commodity, service, or process is known to the trade, or the name under which a business firm operates.
The website www.legal-explanation.com defines the term as:
The official name of a business which it uses to identify itself is called a “trade name.”
How can we embargo trade names without first defining them? Aren’t such firm names as Sullivan and Cromwell or White and Case “trade names”? Isn’t a law firm’s trade name the name it presents to its clients and to the public, the courts, and other lawyers. Once we define what constitutes a lawful firm name and recognize that what we have defined is really a trade name, why perpetuate our confusion?
In outlawing trade names, the Courts have forced us to devote many hours to debating the question: What is a trade name? In my judgment, the debate could have been avoided if the Courts had approached the issue by using the traditional definition of a trade name. They would then have realized that a firm’s name is its trade name.
A Better Definition
Let me suggest how I would reword Rule 7.5(b) to make clear that the name under which a lawyer practices is his trade name. If my language were adopted, we would define trade names as others do. My definition of a trade name would consist of the following:
The name under which a lawyer or a law firm offers legal services to the public shall constitute and be deemed the lawyer’s or law firm’s trade name. A lawyer’s trade name shall contain only (i) the name of a lawyer who practices alone, or (ii), in the case of a law firm, the name of one or more of the lawyers in the firm. The name may also include the name of one or more of the firm’s deceased or retired members, or consist only of the names of deceased or retired members if they are in a continuing line of succession. The name shall not include the name of a non- lawyer or of a lawyer not associated actively with the firm. However, a lawyer or law firm may use for its website a domain name that does not include the name of the lawyer or law firm, provided: (i) all pages of the website clearly and conspicuously include the actual name of the lawyer or law firm; and (ii) the lawyer or law firm does not engage in the practice of law using the domain name.
This approach would enable us to conform precisely to the conventional definition of trade names and to the names under which law firms ordinarily do business and solicit their clients. It would respond to every requirement intended by the Courts, without the confusion inherent in the proscription against “trade” names. Its clarity and simplicity would enable us to avoid defending a term we have misnamed and misdefined. It would make it easier to reconcile our Rule with the ABA’s model Rule 7.5(a), which permits the use of a trade name so long as “it does not imply a connection with a government agency or a public or charitable legal services organization.” We can simply say to the ABA and to the states which have followed its lead: Your Rule permits the use of trade names; ours defines what a trade name is and how it can be used.
Applying the Definition to Ethics Opinion #861
Let’s apply my definition to the questions confronting the Committee in Ethics Opinion #861, supra. The inquring lawyer was admitted in New York, but not in State X. A law firm in State X practiced under the name, the XYZ Law Group. X, Y and Z were the first letters of the firm’s practice areas, not of the firm’s members. The XYZ Law Group asked the inquiring lawyer to open a New York office for the firm. The New York office would operate under the name “XYZ Law Group.”
Clearly, the name “XYZ Law Group” would be viewed as a trade name by the new york courts because “using a name that is not the legal name of one or more partners or former partners in the law firm constitutes use of a trade name,” but, more to the point, it would also fall outside the definition of “trade names” in my proposed Rule.
If we know so well what “trade names” are, why do we need to redefine them? Why don’t we simply acknowledge that we’ve gotten the definition wrong all these years? Our continued ban on “trade names” does not reflect well on our use of the English language. We do not need a Rule rejecting trade names because, under every dictionary of the English language, the names New York lawyers use in their practice would fall under the definition “trade name.” What we do need is a simple Rule defining the term “trade name” in the same way as everyone else.
The prohibition against trade names is an anachronism we can do without. It has been with us for a long time, beginning with the first days of the Code of Professional Responsibility. We need a Rule which recognizes what a trade name is and how it is used in our profession.
Lazar Emanuel is the Publisher of NYPRR.
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