Ethics Opinion 1107

By Committee on Professional Ethics

GAVEL10

New York State Bar Association

Committee on Professional Ethics

Opinion 1107 (10/21/16)
Topic:    Law firm name; use of  “legal services” in firm name.
Digest:   A law firm that is not a qualified legal assistance organization may not use the name “Jane Doe Legal Services, PLLC” without violating Rule 7.5(b), which prohibits law firms from using certain names that are associated with legal assistance organizations.
Rules:    Rule 7.5(b)

FACTS

1.            The inquirer, a lawyer we will call “Jane Doe”, is an attorney who is forming a new law firm and wants to know if she can use her name in the title together with the phrase “Legal Services, PLLC.”

QUESTION

2.            May a private law firm use the name “Jane Doe Legal Services, PLLC?”

OPINION

3.            Rule 7.5(b) contains prohibitions relating to the naming of law firms engaged in private practice.  Relevant to the current inquiry, the rule states that “[s]uch terms as ‘legal clinic’, ‘legal aid’, ‘legal service office’, ‘legal assistance office’, ‘defender office’ and the like may be used only by qualified legal assistance organizations, except that the term ‘legal clinic’ may be used by any lawyer or law firm provided the name of a participating lawyer or firm is incorporated therein.”   [emphasis added]  The question then is whether the title “legal services” is “like” the terms “legal aid,” “legal service office,”  “legal assistance office,” or “defender office.”

4.            The title “legal services” is almost identical to the title “legal service office.”  Cf.  N.Y. State 869 (2011) (use of the title “Smith Law Firm” does not violate Rule 7.5); N.Y. State 732 (2000) (use of the title “The [Attorney Name] Group” does not violate Rule 7.5).  In addition to this facial similarity, the term “legal services,” like the other terms on the list, is often used by qualified legal assistance organizations (e.g., “Bronx Legal Services”, “Legal Services of Central New York”, “Prisoner’s Legal Services of New York”, “MFY Legal Services”, “Neighborhood Legal Services”).  Thus, the use of the term “legal services” in a title is likely to cause the public to believe that the law firm at issue is a legal assistance organization.  Preventing this type of misunderstanding by the public is the very purpose of Rule 7.5(b).

5.            That the term “legal services” is joined with the name of one of the lawyers in the firm does not save the title.  Notably, Rule 7.5(b) allows one term – “legal clinic” – to be used by private law firms when it is joined with the name of one of the lawyers in the firm, but this safe harbor does not apply to any of the other terms.  Thus, any term that is “like” the other terms cannot take advantage of the legal clinic safe harbor.  Moreover, since legal assistance organizations sometimes use one of the terms on the Rule 7.5(b) list together with the name of an individual as their title – either in memoriam or to recognize a sponsoring donor (e.g., “Hiscock Legal Aid Society”, “Jerome N. Frank Legal Services Organization”, “WilmerHale Legal Services Center”), the risk of confusion remains.1

6.            Although Rule 7.5(b) prohibits the use of “legal services” in the name of a law firm, the provision of legal services is, of course, central to what lawyers do.  Consequently, nothing in this opinion is meant to prohibit a lawyer from indicating, other than as part of the name of a firm, that the lawyer renders legal services.

CONCLUSION

7.            A law firm that is not a qualified legal assistance organization may not use the name “Jane Doe Legal Services, PLLC” without violating Rule 7.5(b), which prohibits law firms from using certain names that are associated with legal assistance organizations.

(27-16)

1We recognize that restrictions on a law firm’s use of a trade name may raise constitutional issues.  Compare Friedman v. Rogers, 440 U.S. 1 (1979) (upholding a Texas law prohibiting optometry trade names), with Alexander v. Cahill, 598 F.3d 79, 95 (2d Cir.), cert. denied, 131 S. Ct. 820 (2010) (distinguishing Friedman on its facts but also noting doubt as to Friedman’s continued validity).  As of now, however, the courts have not struck down Rule 7.5(b).  Nor was that provision challenged in Alexander v. Cahill.  If the constitutionality of the prohibition on the use of trade names by private lawyers is someday litigated, one of the issues may be the potential for deception that we have mentioned above.  Ultimately the courts may or may not see that potential as sufficient to justify the restriction, but the constitutionality of the prohibition on trade names is a question of law beyond our Committee’s jurisdiction.

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