Ethically Speaking: Ethics committee rules on naming of law firms

John E. Bernacki

How creative can lawyers get with law firm names? It’s not always a simple question to answer. For that reason, over the years, New York lawyers have occasionally had run ins with ethics commissions over names that they’ve chosen for their law practices.

The New York State Bar Association Committee on Professional Ethics recently addressed law firm naming issues in Opinion #869 (05/31/11). At issue was whether a law firm could be called “The Smith Tax Law Firm.” Another issue raised was whether a solo practitioner could ethically use the word “firm” in the law firm’s name, the concern being that doing so might imply that more than one attorney worked at the firm.

The first step in the committee’s analysis was to review the applicable Rule of Professional Conduct, Rule 7.5(b), which provides that with very few exceptions, lawyers in private practice may not, when naming their firms, use: 1) trade names, 2) names that mislead regarding the identity of the lawyer or lawyers practicing under the name, or 3) firm names that contain names other than those practicing in the firm.

The committee then applied this rule to the phrase that the inquiring attorney sought to use, “The Tax Law Firm.” The committee concluded that using that phrase as part of the firm’s name was ethically improper since, while it “may be literally true … literal truths can nonetheless be misleading. We are concerned that unsophisticated consumers could read ‘The Smith Tax Law Firm’ as saying more than just that the firm practices tax law. The name would be misleading to the extent it suggests that there is a legal entity called a ‘tax law firm’ — falsely implying an officially recognized subcategory of law firms that have more authority or more skill to practice tax law than do ‘ordinary’ law firms.”

However, the committee noted that using the phrase “tax law firm” as the firm’s motto when advertising was permissible: “(A) lawyer who complies with other relevant ethical rules (such as those prohibiting deception, regulating advertising, and restricting claims of specialization) could describe his firm as a ‘tax law firm’ on a website or in other advertising apart from the law firm name.”

The committee then turned to the separate issue of whether using the word “firm” in the name of a solo practice was permissible. The committee concluded that doing so was not problematic: “Even though Mr. Smith is a sole practitioner, his use of the word ‘Firm’ in the name of his practice would not violate Rule 7.5(b). Indeed, ‘The Smith Law Firm’ would clearly and accurately identify the one lawyer practicing under that firm name. Use of the word ‘Firm’ would not suggest that more than one lawyer is involved. See Rule 1.0(h) (defining ‘law firm’ to include a ‘sole proprietorship’).”

It’s not always easy traversing the ethics landscape as a legal practitioner in New York and choosing a permissible name for your law firm is no exception. This is especially true since, in this ailing economy, many lawyers are are looking for a competitive edge that will help their firms stand out from the rest. Unfortunately, the use of creative names for your law firm isn’t necessarily the ideal way to accomplish this goal and it’s probably best to be more conservative when choosing a name your firm, while reserving your creativity for other aspects of your practice.

The Hon. John E. Bernacki is a Pittsford Town Court Justice. His law firm, John E. Bernacki Jr. PC, is located in Pittsford, N.Y. He can be reached at www.johnbernackilaw.com.