Opinion 398

Statement of Facts Discussion Conclusion

Disciplinary Rule 2-102(B) of the American Bar Association, adopted verbatim by the Texas Code of Professional Responsibility, reads as follows: "A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization, . . ."

Further definition is given to the interpretation of D.R. 2102(B) by Ethical Consideration 2-11 which states: "The name under which a lawyer-conducts his practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead layman concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a partnership name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional legal corporation, which should be clearly designated as such . . ."

Clearly, 2-102(B) and other provisions of the Disciplinary Rules must be applied consistently with the requirements of Bates and O'Steen vs. State Bar of Arizona, 433 U.S. 350, 97 S. Ct. 2691, 53 L. Ed. 2d 810 (1977). The Bates decision concerned itself with the First Amendment protection of commercial speech in the specific area of lawyer advertising of the availability and prices of routine legal services. The American Bar Association Task Force on lawyer advertising proposal "A" which was approved by the House of Delegates for Amendment to the ABA Code of Professional Responsibility in 1977 leaves DR 2-102(B) and EC 2-11 wholly unchanged even in light of the Bates decision. Proposal "B" of the ABA would amend DR 2102(B) to read as follows: A lawyer shall not practice under a name that is misleading as to the identity, responsibility, or status of those practicing thereunder, or is otherwise false, misleading, or deceptive within the meaning of DR 2-101(B), or is contrary to the law.

The term "trade name" as used within the present DR 2-102(B) is taken to mean an impersonal name or an assumed name not containing the name or names of those lawyers practicing under that name. Such construction is consistent with the language of EC2-11. When so construed the present provision of DR 2-102(B) is not in conflict with the Bates decision. In fact, the use of trade names which contain no personal identifying information is contrary to the letter and spirit of Bates which recognizes the right of the consuming public to information as to prices at which routine services will be performed and holds that: A rule allowing restrained advertising would be in accord with the Bar's obligation to "facilitate the process of intelligent selection of lawyers, and to assist in making legal services fully available." ABA, Code of Professional Responsibility EC 2-1 (1976). Bates v. State Bar of Arizona, supra at 377.

The use of a fictitious or assumed trade name is contrary to the requirements of EC 2-1 and is further "misleading as to the identity of the lawyer or lawyers practicing under such name" under the terms of DR 2-102.

Further, assuming without deciding that the usage by lawyers of trade names containing no personal identification is with the definition of speech under the First Amendment and Bates, such names are misleading as to the identity of the individuals practicing law and are likely to mislead the public as to the qualifications of the members of the professional corporation or law firm. The Bates decision clearly recognizes the need for regulation of advertising by the Bar: "if a naivete of the public will cause advertising by attorneys to be misleading, then it is the Bar's role to assure that the populace is sufficiently informed as to enable it to place advertising in its proper prospective." Bates v. State Bar of Arizona, supra at 375.

The Court further recognizes the need for regulation of advertising at Pages 383 and 384 wherein the Court states: "Advertising that is false, deceptive, or misleading of course is subject to restraint. For example, advertising claims as to the quality of services--a matter we do not address today--are not susceptible of measurement or verification; accordingly, such claims may be so likely misleading as to warrant restriction."

In a recent decision upholding Tex. Rev. Civ. Stat. Ann. art. 4552 ∋5.13(d) (Vernon 1976), the Texas Optometry Act, which prohibited an optometrist from practicing under "any assumed name, corporate name, trade name, or any name other than the name under which he is licensed to practice optometry in Texas," the United States Supreme Court said: "It is clear that the State's interest in protecting the public from the deceptive and misleading use of optometrical trade names is substantial and well-demonstrated. We are convinced that ∋5.13(d) is a constitutionally permissible state regulation in furtherance of this interest. . . Since the Act does not prohibit or limit the type of informational advertising held to be protected in Virginia State Board of Pharmacy v. Virginia Citizens Consumers Council, 425 U.S. 748 (1976), and Bates, the factual information associated with trade names may be communicated freely and explicitly to the public. An optometrist may advertise the type of service he offers, the prices he charges, and whether he practices as a partner, associate, or employee with other optometrists. Rather than stifling commercial speech, ∋5.13(d) ensures that information regarding optometrical services will be communicated more fully and accurately to consumers than it had been in the past when optometrists were allowed to convey the information through unstated and ambiguous associations with a trade name. In sum, Texas has done no more than require that commercial information about optometrical services appear in such a form. . .as [is] necessary to prevent its being deceptive." Friedman v. Rogers, 47 U.S.L.W. 4151 (1979).

A trade name is likely to describe the nature and scope of one's practice or include representations as to quality of the services offered by the attorneys. It further may mislead the public into believing members thereof are specialists in a particular field. Advertisements which convey the impression that a lawyer possesses a particular expertise should await his or her's certification under the State Bar's Certification of Legal Specialists. Also, EC 2-14 states that a lawyer should not be permitted to hold himself out as a specialist except as authorized by State controlled certifications programs. A trade name which is likely to imply to members of the public that the lawyers practicing under that name are specialists is misleading.

The name Southwest Trial Associates could be misleading and certainly does not inform the public as to the identity, responsibility, or status of those practicing thereunder. Furthermore, the use of non-personal trade names is likely to mislead the public by confusing the identity of attorneys practicing under fictitious names with the identity of laymen advertising behind vague trade names with legal connotations.

A lawyer or professional corporation may practice under any name that is not misleading as to the identity, responsibility or status of those practicing thereunder, or otherwise false, fraudulent, misleading, or deceptive. For example, "Legal Clinic of John Doe" would be permissible but not "Legal Clinic, Ltd."

The State Bar may constitutionally disallow the use of impersonal trade names or assumed names such as "Southwest Trial Associates" by attorneys in private practice. This policy does not restrain the flow of commercial speech within the protective scope of the First Amendment; in fact, it is designed to assure that the public receives more information about the identity, responsibility, and status of persons engaged in the practice of law.