Ethics Opinion Articles - NC State Bar Journal

Trade Names

By Suzanne Lever

What the heck is a “trade name” and what does it have to do with a lawyer’s ethical responsibilities? As an example, a law firm with the name “Hutz, Lovejoy, Burns, Krabapple, Flanders, and Nahasapeemapetilon” may sometimes prefer to use a simpler name such as “Springfield Personal Injury Law Firm.” “Springfield Personal Injury Law Firm” is a trade name.

Rule 7.5(a) of the Rules of Professional Conduct allows lawyers to use trade names. A trade name used by a North Carolina law firm has to be registered with the North Carolina State Bar. (Interestingly, North Carolina is the only state bar that requires trade name registration.) Comment [1] to Rule 7.5 provides that a lawyer or law firm may also be designated by a distinctive website address (URL). If a URL for a law firm's website is more than a minor variation of the official name of the firm, the URL must be registered with the State Bar. See 2005 FEO 8. Therefore, "www.HutzLovejoyBurns KrabappleFlandersandNahasapeemapetilon” would not have to be registered as a trade name. Neither would www.hlbkfnlaw.com or www.hutzlovejoylaw.com. However, www.springfieldpilawyer.com and www. springfield-personalinjury.com would have to be registered.

The purpose of the trade name registration requirement set forth in Rule 7.5(a) is to ensure that a law firm is not using a trade name that is false or misleading. URLs are subject to the same restrictions as other trade names, even if the URL is only being used as a “traffic director” to capture internet searches and direct the internet browser to the lawyer’s primary website. The URL for a law firm’s website does not have to include words that identify the site as belonging to a law firm, provided the URL is not otherwise misleading and the home page of the website clearly and unambiguously identifies the site as belonging to a lawyer or a law firm. See 2005 FEO 14.

Misleading communications are defined in Rule 7.1 as, among other things, communications that create unjustified expectations about the results the lawyer can achieve. For example, “Springfield Ticket Nukers” implies that the firm will “nuke” or eliminate a ticket, thereby misleading a prospective client about the results that a firm may be able to obtain. Likewise, the trade names “Kwik-E-Mart Slip and Fall Verdicts,” “www.settlements-r-us” or “www.nojailfor you.com” would not be permissible.

A trade name is also misleading if it implies a connection with a government agency. For example, trade names such as “Springfield Nuclear Power Review Clearinghouse” or “Springfield Social Security Disability Claims Center” would be prohibited. Similarly, Rule 7.5(a) prohibits the use of a trade name that implies a connection with a public or charitable legal services organization. The designation “Springfield Legal Services” implies that the firm is a charitable legal services organization. Comment [1] to Rule 7.5 permits the use of such a designation if any communication that includes the trade name also includes a disclaimer. Therefore, any communication by a firm that includes this trade name must clearly identify the firm as a private law firm and not a charitable legal services organization. This can be done, for example, by use of a byline under the trade name as follows: “Springfield Legal Services, Trade Name for Lionel Hutz, Attorney at Law.” Alternatively, the firm could use a footnote such as: “A private law firm operating under the name Lionel Hutz, Attorney at Law, and not affiliated with any charitable legal services organization.”

The official name of a law firm that is a professional corporation or professional limited liability company (PLLC), as shown on the records of the North Carolina Secretary of State, is not a trade name. A lawyer or law firm may use minor variations of the official name without registration with the State Bar. See Comment [1] to Rule 7.5. For example, “Law Office of Lionel Hutz,” “Hutz and Associates,” and “Hutz Law Firm” fall within the category of trade names that do not have to be registered with the State Bar. However, it is misleading and would not be permissible to use a designation such as “Hutz and Associates,” “Hutz Legal Associates,” or “Hutz Consulting Group” if the law practice consists of only one lawyer.

The inclusion of a professional entity designation in a trade name is potentially misleading in violation of Rule 7.5(a) unless the official name of the firm on file with the secretary of state is disclosed.1 Therefore, if a trade name includes a professional entity designation (e.g., PA, PC, or PLLC), the lawyer or law firm must use a footnote or subtext in conjunction with the trade name to disclose the entity’s official name on file with the secretary of state. For example, “Hutz Business Law, PC, A Professional Corporation Incorporated as Lionel Hutz, PC.”

If a law firm is incorporated and has also registered a trade name, the North Carolina ethics rules do not require the firm to include the professional entity designation in conjunction with the use of the trade name. Therefore, in the above scenario, it would be permissible under the Rules of Professional Conduct to use “Hutz Business Law” in advertising without the professional organization designation. However, the lawyer is responsible for complying with any law pertaining to the omission of the professional entity designation in various scenarios.

To register a trade name, a lawyer must complete and submit an Application for Trade Name Registration to the State Bar. This form can be found on the State Bar website at www.ncstatebar.gov. (Click "Forms" on the home page menu.) There is no fee for applying. The application will be reviewed to determine whether the requested trade name complies with Rule 7.5. If the name is approved and registered, the lawyer will receive a certificate of registration. If the name is not approved, the lawyer will receive notice of the decision, which may be appealed to the Ethics Committee of the State Bar.

Suzanne Lever is assistant ethics counsel for the North Carolina State Bar.

Endnote
1. The regulations for naming Professional Corporations and Professional Limited Liability Companies Practicing Law are located at 27 N.C.A.C. 1D, Section .0102(a).

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