Opinion No. 2014-1

(Inquiry No. 2014-1 )

Law firm names; attorney advertising; use of logo; misleading the public.

May a law firm enhance its name by further describing itself by using the phrase “Tax Attorneys” as part of the firm’s logo or moniker, while complying with the firm’s ethical obligations?

Rule Provisions:
RULE 7.1
RULE 8.4

Facts Presented:
A law firm purporting to practice in the area of providing tax law advice wishes to use the phrase “Tax Attorneys” placed under the name of the firm, as part of the logo or moniker. For example:

Tax Attorneys

May a law firm practicing tax law ethically represent itself to the public with a logo, moniker, or catchphrase incorporating the phrase “Tax Attorneys?”

As a threshold matter, a law firm may not misrepresent itself nor be deceptive to the public. See Rule 7.1(a)(1) (prohibiting “false, deceptive or misleading” statements in lawyer advertisements), Rule 7.5(b) (prohibiting use of a name or trade name that is misleading to the public), and Rule 8.4(c) (prohibiting a lawyer or law firm from engaging in “conduct involving dishonesty, fraud, deceit or misrepresentation”). Hence, any proposed nickname, moniker, motto or trade name for a firm may not misrepresent the firm to the public. Furthermore, a firm “shall not” state that is “specializes” in a particular field, see Rule 7.4(a), although Rule 7.4(b) permits “patent attorney” designation for those qualified to do so.

In contrast, it is permissible to use descriptions which do not otherwise violate attorneys’ ethical obligations. See, e.g., Rule 7.5(e)&(f), (permitting use of non-misleading domain name or telephone number containing moniker or motto, and specifically discussing examples of such in the comments thereto). Hence, a firm may refer to itself as a “copyright law firm” where that firm practices in this field for a substantial portion of its practice. A firm may not refer to itself as such, however, if it would be a misrepresentation. Therefore, if a firm only practices a rather insubstantial amount, or none, of its practice on tax work, it may not refer to itself as a tax law firm.

The New York State Bar Association addressed a similar inquiry in Ethics Opinion 869, where a lawyer inquired, inter alia, about the propriety of a firm’s name including an area of law in which the firm practices, such as “Tax.” That Committee opined that generally, lawyers are permitted to identify their practice areas in marketing for their firms, pursuant to Rule 7.4(a). The Committee then concluded, that a lawyer otherwise compliant with other relevant ethical rules would be permitted to self-describe his firm as a “tax law firm” on a website or in other advertising apart from the law firm name. (i.e., professional notices and announcement cards, signs, and letterheads). Opinion 869, however, took a more stringent view of incorporating so-called trade names into the firm name. Citing to a broad tradition, and the overriding policy of not deceiving the public, it states, the “prohibition against trade names is broad, permitting use of little beyond the names of lawyers presently or previously associated with the firm.” Citing to previous decisions, Opinion 869 reiterates and reinforces past determinations that, “The People’s Law Firm” was impermissible, and that even adding “A” before the firm name is proscribed. Hence, the firm name – as compared with attorney advertising in general – was not permitted there to reflect the substantive area of the firm’s practice (i.e., tax law).

The present inquiry asks this Committee to draw a finer distinction: may attorneys advertise their firm name, which does not refer to the area of practice of the firm and is otherwise permissible – with a logo, trade name, or moniker directly beneath the firm name, stating the substantive area of law the firm wishes to market or advertise?

Given the simultaneous (i) prohibitions in the composition of a firm’s name but (ii) the permissibility of marketing a firm with a logo or under a trade name, the proposed logo would be permissible. The public can easily determine the name of the firm as distinctly separate from the substantive area of practice with the present inquiry. Indeed, this logo has visual lines separating the two. Nor is there any reason for there to believe that the font size, colors, or other visual cues would distract away from the firm name and focus the public on the so-called trade name to be used in this logo (i.e., “Tax Attorneys”). Therefore, so long as it is not otherwise in violation of the Rules (e.g., deceptive), the firm may use the present proposed logo.

The firm is permitted to use the logo so long as the firm name is not confused with, or manipulated to be deemphasized in comparison to, the phrase “Tax Attorneys” in the same logo.

[Approved by the Full Committee on March 11, 2014]