Trade Names for Lawyers
One recent, little-reported development reminded me that it might be time to remind readers of one marketing tool that is now, for the first time, available to all American lawyers in private practice: the use of a trade name for their firms.
It might well be time to rethink your marketing approach.
Specifically, for lawyers who practice (or want to practice) in the last nine states that recently dropped their trade-name prohibitions, now may be the time to think about rebranding all or part of their practices. For lawyers in jurisdictions that have permitted trade names for years, it still might be time for a rethink.
What's Now Possible
A law firm that only handles Social Security disability claims can now call itself, coast-to-coast, “The Disability Law Firm.” A firm that only handles collection work can call itself, “The Creditors’ Law Firm,” in all U.S. jurisdictions, without being accused of misconduct because it does not identify the lawyers who practice there. (Of course, they’d better check for trademark clearance first, because, yes, law firm names can certainly be trademarked.)
And the trade name need not describe the whole firm. A law firm’s practice group that advises doctors on all sorts of legal issues can market those lawyers under the tagline, “Lawyers for Doctors,” along with the firm name.
A Long History
For decades, every law firm or law practice in the country was required to call itself by the names of lawyers—living or dead— who practiced or had practiced there. If the firm was “Dewey, Cheatham & Howe,” then lawyers with those surnames had to be current or deceased firm lawyers.
That ban dated to the old ABA Canons of Professional Ethics in effect from 1908 to 1969. The prohibition lived on in the 1969 ABA Model Code of Professional Responsibility, which explained that “[t]he use of a trade name or an assumed name could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder.”
A slender policy rationale, to be sure, but it was a different time. Until the 1977 U.S. Supreme Court decision in Bates v. State Bar of Arizona, virtually all lawyer advertising was banned. Until the high court’s 1975 decision in Goldfarb v. Virginia State Bar local bars’ minimum fee schedules restrained attorney fees charged by many lawyers.
The Ban Begins to Crumble
It was only with the adoption of the ABA Model Rules of Professional Conduct in 1983 that the prohibition was abandoned, but the core principle of all regulation of lawyer communications remained: No lawyer communication, including law firm trade names, could be false or misleading.
In 2018, the ABA significantly revised its advertising rules, but these two points—trade names are permitted, and they cannot be false or misleading—remain.
Some may recall that the ABA’s 2018 reforms were intended to revise, simplify and slim down the ABA’s lawyer ad regulations to the core ban on false and misleading advertising. A few states have started to consider and adopt those changes. Even so, until 2021, nine states remained that steadfastly clung to the trade-name ban.
Those bans are now all gone. That’s the news.
Thanks to One Law Firm
Remarkably, the abolition of those last rules banning law firm trade names was accomplished by one law firm, LawHQ, LLC of Salt Lake City.
LawHQ says on its website it’s “a lawtech firm. In other words, we are a technology company that is also a law firm.” Their stock-in-trade is representing clients to sue over robocall calls, voicemails and spam. They also publish a robocall app for clients and others.
In early 2020, LawHQ, sued the state bars in Georgia, Indiana, Mississippi, Nebraska, New Jersey, New York, Ohio, Rhode Island and Texas, seeking to have their bans held unconstitutional under the First Amendment. The firm operated in several states, with plans for national expansion, and wanted to be able to operate nationally under a single trade name.
By summer 2021, Texas became the last holdout to cave. In a March vote by Texas State Bar members, 78 percent voting favored the change.
And the field is now clear for other firms to go national with one trade name, too.
Are They Really Gone?
What restrictions on law firm use of trade names are left?
The primary restriction is that it cannot be false or misleading. Calling yourself The Health Law Firm, when no one at the firm practices health law will violate the rules. And for years, there has been authority that lawyers cannot use names that suggest or imply some connection to a governmental agency. Some specific versions of that type of ban on false or misleading names do survive.
For example, New York, after recent revisions, retains a ban on lawyers using in law firm names “[s]uch terms as ‘legal aid,’ ‘legal service office,’ ‘legal assistance office,’ ‘defender office,’ and the like may be used only by bona fide legal assistance organizations.”
A few other mild restrictions also survive. For example, Mississippi allows the use of “legal clinic” or “legal services” in a firm name “if the lawyer’s practice is devoted to providing routine legal services for fees that are lower than the prevailing rate in the legal community for those services.”
But after LawHQ’s recent campaign, no jurisdiction bans trade names that accurately and in a non-misleading way describe a law firm.
Time for Rebranding?
So, if your firm’s looking for a fresh start on its marketing, or exploring a national practice that could use a more distinctive moniker than three surnames, it may be time to start thinking creatively about rebranding, without those old restrictions in mind.
