ETHICS COMMITTEE OPINION NO. 17-03
THIS OPINION IS ADVISORY ONLY
QUESTION PRESENTED
May an attorney (Attorney) use one or more nicknames (herein
referred to as "trade names") other than the Attorney's name or
law firm name in advertising of the Attorney or law firm?
OPINION
APPLICABLE NORTH DAKOTA RULES OF
PROFESSIONAL CONDUCT
Rule 7 .1, N.D.R. Prof. Conduct: Communications Concerning the
Services of a Lawyer or Persons Professionally Associated with the
Lawyer
Rule 7.2, N.D.R. Prof. Conduct: Advertising
Rule 7.3, N.D.R. Prof. Conduct: Solicitation of Clients
Rule 7.4, N.D.R. Prof. Conduct: Communication of Fields of
Practice
Rule 7.5, N.D.R. Prof. Conduct: Firm Names and Letterheads
FACTS PRESENTED
An Attorney intends to use one or more trade names to represent
himself and his firm in advertising. Specifically, the Attorney intends
to use one trade name on a billboard advertisement in North Dakota,
and another trade name on a billboard advertisement in Minnesota.1
The trade name itself will include a reference to the type of legal
matters the Attorney handles, specifically DUI violations (e.g. “ABC
DUI”).
The Attorney intends for the billboards to include a reference to the
Attorney’s firm website. The firm's website will also reference the
Attorney's trade name (e.g. “ABCDUl.com”).
The Attorney's intended trade name includes a term that is also
utilized by, and commonly associated with, a well-known North
Dakota institution.
The Attorney intends for the billboards to identify the law firm or
attorney who is sponsoring the advertisement. The Attorney does not
intend to represent to the public that the trade name is a separate
entity apart from the law firm. The Attorney further intends to
use the trade name solely for the purposes of advertising, and does
not intend to use the trade name on pleadings and practice related
documents.
DISCUSSION
I. A firm or attorney's use of a trade name in advertising is
permissible under North Dakota Rule of Professional Conduct 7.5.
North Dakota Rule of Professional Conduct 7.5 governs a firm's
use of a trade name and provides that "[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." Comments
to Rule 7.5 provide useful context for analyzing the appropriateness of
a trade name's use,
A firm may be designated by the names of all or some of its
members, by the names of deceased members where there has
been a continuing succession in the firm's identity or by a trade
name such as the "ABC Legal Clinic." A lawyer or law firm may
also be designated by a distinctive website address or comparable
professional designation. Although the United States Supreme
Court has held that legislation may prohibit the use of trade
names in professional practice, use of such names in law practice is
acceptable so long as it is not misleading.
N.D.R. Prof. Conduct 7.5 cmt. 1 (emphasis added). The use of
a designated trade name may be acceptable, as long as it is not
misleading and does not violate the provisions of Rule 7.5, N.D.R.
Prof. Conduct. The comments to Rule 7.5 also indicate it is
permissible for an attorney or a firm to use a designated distinctive
name for its domain name. Id. Ultimately, "Whether or not a
particular trade name is to be deemed inherently misleading, so as
to violate th