MARYLAND STATE BAR ASSOCIATION, INC.
COMMITTEE ON ETHICS
ETHICS DOCKET NO. 2010-02
Propriety of Using the Generic Name of a State Administrative Agency As a Trade Name
You have requested an opinion of the Maryland State Bar Association Committee on Ethics as to the propriety of using the generic name of a state administrative agency for your practice and I have been assigned to respond to your inquiry. For the reasons set forth hereinafter, it is the Committee’s opinion that you should discontinue the use of this name for your firm.
Rule 7.5 addresses the use of firm names and letterheads. Rule 7.5(a) states:
“A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.”
Comment 2 to Rule 7.5 advises that “The use of any of the following ordinarily would violate this Rule … (2) The generic name of any form of government unit found in the same area where the firm practices …. ” Furthermore, Comment 3 to Rule 7.5 provides, “The acceptability of the use of a proper or generic name of a government unit when coupled with an adjective or further description … should be judged by the general policy underlying Rule 7.5, and any doubt regarding the misleading connotations of a name may be resolved against use of the name.” (Emphasis added).
Rule 7.1 addresses communications concerning a lawyer’s services and prohibits a lawyer from making a false or misleading communication about the lawyer or the lawyer’s services. Rule 7.4 addresses communications regarding a lawyer’s fields of practice and prohibits a lawyer from holding himself or herself out publicly as a specialist.
After consideration of your inquiry and an examination of our responses to prior requests about firm names in Ethics Docket 2004-09, Ethics Docket 2004-10 and Ethics Docket 2006-19, it is the opinion of the Committee that the name you suggest is not in compliance with Rules 7.1, 7.4 and 7.5. The Committee has significant concerns that a client may interpret the name to mean that your firm is affiliated with or endorsed by the state administrative agency that your proposed trade name incorporates, that the members of your firm have received some sort of special accreditation and/or that those associated with your firm are specialists in the area of practice before that agency. That the generic name of the state agency also has become a shorthand reference to the nature of the practice before it does not change our opinion. The name may also create an unreasonable expectation of success for the client and may lead an unsophisticated prospective client to seek out your firm solely on the belief that you are the preeminent law firm practicing this area of law in the State.
Other state ethics opinions focus on whether the use of the trade name would be misleading to the general public. See Rhode Island Ethics Opinion 94.27 (1994) (use ofa trade name such as “The Woman’s Law Center,” that implies a connection with a charitable legal services organization is likely to be misleading to the public and is impermissible under RI Rule 7.5(a)).
Some states have approved trade names, such as “Medical Malpractice Associates,” as not implying a specialization, See Phila. B.A. Prof. Guid. Comm., Op 89-21 (1989) (finding that a name such as “Medical Malpractice Associates” would be permissible, but that a law practice’s use of trade names such as “Med Law Associates” or “Medical Malpractice Clinic” would violate the applicable rule because the term implies a specialty in medical malpractice cases and also that there is a medical doctor or personnel on staff in the law office). In South Carolina, the state’s Ethics Advisory Committee approved the use of the trade name “Midlands Bankruptcy Counselors, LLC” despite the fact that the firm’s lawyers were not certified in bankruptcy law, an area of practice the South Carolina Supreme Court recognizes as a specialty for certification. SC. Adv. Op. 03-10.
Where your selected trade name differs with those approved in other states that we have noted above is its similarity with the generic name of the state agency before which a matter within this substantive practice area must exclusively begin. Thus, the use of the trade name and the state agency’s generic name are intertwined. Finally, as noted above, the Comment to Rule 7.5 states that “any doubt regarding the misleading connotations of a name may be resolved against use of the name.” Accordingly, the Committee is of the opinion that your firm should discontinue the use of this trade name for your practice.
The Committee thanks you for your inquiry and for your interest. Our opinions are available on line at www.msba.org.
REFERENCES:
Maryland Rules of Professional Conduct
Rule 7.1
Rule 7.4
Rule 7.5
Ethics Docket 2004-09
Ethics Docket 2004-10
Ethics Docket 2006-19
ASSIGNED TO: Thomas E. Lynch, III
DATE ASSIGNED: September 4, 2009
DATE DISTRIBUTED: October 28, 2009, November 10,2009