Can a lawyer advertise practice in a field even though his name closely resembles a better-known lawyer in the same field?

Plain-English summary

A sole practitioner with a national immigration-law reputation (called "Pickle") faced a newly admitted lawyer (called "Pickel") who opened a Chicago office as "Pickel and Flash" and ran three newspaper advertisements stating the firm handled immigration matters. Because the two surnames are pronounced the same and spelled similarly, the concern was that business would be diverted from the older, more experienced lawyer to the younger one.

The committee found the three advertisements complied with Rule 2-101(a), which permits an advertisement to describe the types of legal matters a lawyer will accept. It then considered Rule 2-101(b), which bars advertisements that contain false or misleading statements or otherwise operate to deceive. The committee concluded the advertisements did not violate that prohibition. There would be a violation, the committee said, if the advertisements were calculated to "pass off" the advertising lawyer as the other lawyer, conduct that would also amount to the tort of unfair competition, but nothing in the advertisements showed that vice.

The committee reasoned that the younger lawyer has as much right to his own name and to practice immigration law as the older lawyer. It acknowledged some members of the public might be misled by the similarity, but observed that this possibility exists in countless cases and that a rule of professional conduct cannot eliminate it and still apply fairly to the lawyers involved.

Currency note

This opinion was issued in 1981, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rules (Rules 7.1 and 7.5(a) with its Comment [1]), while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a lawyer advertise in a field where his name resembles a well-known lawyer's name?

A: The opinion concluded yes; the younger lawyer has as much right to his own name and to the field as the established lawyer, so long as the advertising is not calculated to pass him off as the other lawyer.

Q: When would similar-name advertising cross the line?

A: Per the opinion, it would violate Rule 2-101(b) (and constitute the tort of unfair competition) if the advertisements were calculated to "pass off" the advertising lawyer as the other, better-known lawyer.

Q: Does the chance that some readers are confused make the ads improper?

A: The committee said no; some public confusion from name similarity is possible in countless cases, and a conduct rule cannot eliminate that and still treat the lawyers fairly.

Background and rules framework

The opinion applied Illinois Code of Professional Responsibility Rule 2-101(a) (permitted advertising content) and Rule 2-101(b) (no false, misleading, or deceptive advertising). The Board's 2010 affirmation maps the analysis to current Illinois Rules of Professional Conduct 7.1 (communications about a lawyer's services) and 7.5(a) (firm names and designations), corresponding to ABA Model Rules 7.1 and 7.5.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-101(a), (b) (applied in the opinion)
• Illinois RPC 7.1, 7.5(a) (2010 equivalents per the Board's affirmation)
• MR 7.1 (communications about services); MR 7.5 (firm names and letterheads)

See also

• ISBA Ethics Op. 03-02: Firm Name Implying Partnership and Of Counsel
• ISBA Ethics Op. 22-04: Deceased or Retired Partners' Names in a Firm Name
• ISBA Ethics Op. 812: Pens Imprinted With a Firm Name

Source

• Landing page: https://www.isba.org/ethics/opinions/736