Winter 2018 Gavel Winter 2018 Gavel - Page 35

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