UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.
Ethics Advisory Opinion 03-10
Factual Summary
Attorney has formed an LLC using a name that includes terms that reflect the field of law in which he intends to concentrate (e.g. "Midlands Bankruptcy Counselors, LLC"). The Attorney has not been certified as a specialist in the area of concentration.
This Attorney wishes to have a box in the yellow pages, and a similar ad in a local newspaper, identifying the company as providing legal services for clients who need such services (albeit without the use of any form of the words "certified," "experts," "specialists" or "authority"). The yellow page box and local ad will identify the attorney responsible for the ad.
The Attorney also wishes to develop a web site containing information designed to educate prospective clients on relevant concepts and the nature of the company's services to assist them in making a decision concerning use of the services of the company.
Questions Presented
Is use of a company name which includes a term or terms that reflect that the company practices in an area in which the Supreme Court recognizes a specialty "false, misleading, deceptive or unfair," for purposes of Rule 7.1, where the practicing attorney (or attorneys) has (have) not been certified as a specialist by the Supreme Court?
If use of such name has the propensity to mislead, could the deficiency be cured by use of a disclaimer on the web site and any marketing materials that may be produced (other than those with nominal textual content, such as a box in the telephone book, letterhead or business cards) will include the following disclosure (or one substantially similar to it):
“NOT CERTIFIED: Appellate Court Rules recognize bankruptcy as a field of law in which the state Supreme Court may certify practitioners who have demonstrated a high level of experience and expertise in this practice area as ‘specialists’. The lawyers of Midlands Bankruptcy Counselors, LLC, are not certified, but will gladly recommend prospective clients to an attorney with such certification where the client's needs and circumstances suggest that such a referral is appropriate.”
Summary
A lawyer may include in the firm's trade name an area of practice in which the lawyer is not certified under Rule 408, SCACR, provided that the firm does, in fact, concentrate its practice in the area specified.
Opinion
Rule 7.5 (a) permits a lawyer to use a trade name, subject to two limitations. First, the trade name may not “imply a connection with a government agency” or a legal services organization. Second, the name may not violate Rule 7.1, which prohibits false, misleading, deceptive, or unfair communications. Thus, for example, according to the Comment to Rule 7.5, a firm using a trade name that includes a geographical element “may be required” to include a disclaimer to avoid any misleading suggestion that the firm is public legal aid agency.
With regard to the first limitation under Rule 7.5, the question is whether the use in the proposed trade name of any geographic identifier requires a disclaimer of the type described in the Comment. While it is a close call, the Committee believes that a distinction may be drawn between trade names that include the name of a specific governmental entity or subdivision (such as “South Carolina”, “Greenville”, or “Horry”) and those names which are simply geographic in nature (such as “Lowcountry”, “Pee Dee”, or “Midlands”). The use of the former is more suggestive of affiliation with an identifiable government or public agency and is more likely to require a disclaimer.
With regard to the second limitation, that a trade name not be misleading, the specific issue raised here is whether the use of a trade name including a specific area of practice would alone create a reasonable inference that the firm’s lawyers are certified specialists. Under Rule 7.4, only lawyers who are properly certified as specialists in certain fields may hold themselves out as specialists. The firm’s lawyers, in fact, have no such certification and, thus, any such inference in the firm name would be misleading. The Committee, however, does not believe that inclusion of a practice area in the firm’s trade name is alone sufficient to create a misleading suggestion that the lawyers in the firm are certified specialists in a particular practice area.
The Comment to Rule 7.4 specifically recognizes that a lawyer may “indicate areas of practice in communications about the lawyer’s services” even though the lawyer is not certified as a specialist in those fields. Thus, the rules clearly permit a lawyer, who is not a certified specialist, to use his or her own name as the firm name and to then specify that the firm limits its practice to a specific area of law. That communication is deemed not to be misleading. The Committee does not believe that the public is any more likely to be misled if firm name itself includes a specific practice area, as long as the firm, in fact, concentrates its practice in that area of the law.
Some may argue that the issue is one of degree and that designation of a practice area in a firm name is more likely to suggest specialization than in other communications. The Committee, however, finds nothing in Rule 7.5 to suggest that a more restrictive rule must apply to trade names than to other communications regarding a firm’s areas of substantive practice. Nor does it matter whether the designated area of practice is itself a field in which specialist certification is offered. While there is perhaps even less chance of confusion when the designated area of practice is not a field in which specialization is recognized, Rule 7.4 appears to permit a lawyer, who is not a certified specialist, but who practices in a field in which there are specialists, to designate that area as one in which the lawyer practices. The same principle should apply to inclusion of the practice area in the firm trade name.
The firm name, of course, like any other communication, must not include any form of the prohibited words “certified”, “specialist”, “expert”, or “authority” unless the lawyers in the firm are, in fact, certified specialists.
Given this conclusion, the disclaimer proposed in the inquirer’s second question would not be necessary. There would be no harm, however, in including the proposed disclaimer if the inquirer so desired.