C-231
July, 1984
SYLLABUS
Use of a trade name in legal advertising is permissible where the name of a lawyer responsible for the actions of the group is clearly associated with the trade name.
References: Admin. Order 1978-4; CI-343, CI-357, CI-405, CI-646, CI-788, CI-852, CI-854.
TEXT
A lawyer asks whether a law firm practice law as "The Business Law Center, a division of Smith & Jones, attorneys-at-law" or as "The Business Law Center, operated by Smith & Jones, attorneys-at-law."
Supreme Court Administrative Order 1978-4 (as extended), expresses the general rule regarding advertising, and states:
"A lawyer may on behalf of himself, partner, or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. . . ."
ABA Model Rule of Professional Conduct 7.1 adopts the same approach, providing in part:
"A lawyer shall not make a false or misleading communications about the lawyer of lawyer's services. A communication is false or misleading if it:
"(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading . . . ."
This committee consistently has held that it is misleading and therefore unethical to use a fictitious or assumed trade name without identifying the lawyer associated with the enterprise. CI-854, CI-852, CI-788, CI-646, CI-454, CI-405, CI-357, and CI-343. However, "use of a trade name in an otherwise proper advertisement is not unethical so long as the name or names of the lawyers or law firm appear in conjunction with the advertisement." CI-854; see CI-852, CI-454, CI-405, CI-357, CI-343. See also ABA Model Rule of Professional Conduct 7.5(a), use of a trade name is appropriate if it does not violate ABA Model Rule 7.1.
Thus use of a trade name is appropriate so long as the names of the lawyers are used and are "clearly associated" with the use of the trade name. CI-405. See CI-788, advertising stating that program administered "through" lawyer's office satisfies requirement of CI-405.
Although some ethics opinions have stated that it is necessary to list the names of all lawyers associated with the use of the trade name, e.g., CI-646, CI-854, such a requirement is impractical for large groups of lawyers and is unnecessary so long as the advertisement refers the client to a lawyer who will take responsibility for the actions of the group. The requirement that a responsible lawyer be named is consistent with the belief that "professional responsibility to the client and the public in general mandate that lawyers be directly identified with their work product," CI-357.
If this requirement is met, there appears to be no ethical distinction between the use of the terms "a division of" and "operated by" Smith & Jones.
In reaching the conclusion that it is proper to state that the Business Law Center "is operated by" Smith & Jones, or is "a division of" Smith & Jones, we assume that Smith and Jones are in fact partners. It is misleading and therefore unethical to indicate a relationship between Smith and Jones which does not in fact exist, CI-854; Administrative Order 1978-4; ABA Model Rule of Professional Conduct 7.5(d), lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
Therefore, use of a trade name in legal advertising is permissible where the name of a responsible lawyer clearly associated with the trade name is included in the advertisement.
Any questions regarding whether an advertisement comports with Michigan law concerning trade names is beyond the jurisdiction of this committee. CI-646.