Can a lawyer hire a lead generator service that advertises using another lawyer's or firm's trademark, name, or likeness without permission?

Plain-English summary

The Committee was asked about a lawyer hiring a lead generator service that advertises by using another lawyer's or law firm's (the opinion calls it "John Doe's") trademark, name, or likeness without permission. The opinion concludes that this practice is impermissible.

The opinion applies MRPC 7.1 (no false, misleading, deceptive, or unfair communication about a lawyer's services) and MRPC 7.7(a) (no firm name, letterhead, or professional designation that violates Rule 7.1), and concludes that using another lawyer's name, likeness, or trademarked materials without permission is a false, misleading, and deceptive communication.

The opinion adds two points about responsibility for the third party. Under MRPC 8.4, it is misconduct for a lawyer to violate the rules through the acts of another, such as a lead generator. Under MRPC 5.3, a lawyer who retains a lead generator must make reasonable efforts to ensure the service's conduct is compatible with the lawyer's professional obligations, and must exercise reasonable due diligence so the service's practices do not run afoul of the rules.

In practice

Under this opinion, a Mississippi lawyer may not knowingly use a lead generator that advertises with another lawyer's trademark, name, or likeness without permission, and the lawyer cannot avoid responsibility by routing the conduct through a third party. The opinion holds that the lawyer must exercise reasonable due diligence under MRPC 5.3 to ensure the lead generator's practices comply with the rules.

Common questions

Q: Can a lawyer hire a lead generator that uses a competitor's name or trademark in ads?

A: No. The opinion concludes that using another lawyer's trademark, name, or likeness without permission is false, misleading, and deceptive under MRPC 7.1 and 7.7, and is impermissible.

Q: Is the lawyer responsible for what the lead generator does?

A: Yes. The opinion concludes that under MRPC 8.4 a lawyer cannot violate the rules through the acts of another, and under MRPC 5.3 must make reasonable efforts to ensure the service's conduct complies.

Q: What diligence does the lawyer owe over a lead generator?

A: Per the opinion, the lawyer must exercise reasonable due diligence to ensure the lead generator's practices do not run afoul of the Mississippi Rules of Professional Conduct.

Background and rules framework

The opinion interprets MRPC 7.1 (false or misleading communications) and MRPC 7.7(a) (firm names and professional designations), corresponding to Model Rules 7.1 and 7.5, together with MRPC 5.3 (responsibilities regarding nonlawyer assistance) and MRPC 8.4 (misconduct), corresponding to the same-numbered Model Rules.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 7.1 (false or misleading communications) (cf. Model Rule 7.1)
• MRPC 7.7(a) (firm names and designations) (cf. Model Rule 7.5)
• MRPC 5.3 (supervision of nonlawyer assistance) (cf. Model Rule 5.3)
• MRPC 8.4 (misconduct, including through the acts of another) (cf. Model Rule 8.4)

See also

• ABA Formal Op. 501: Solicitation Under Rule 7.3
• IL Ethics Op. 22-02: For-Profit Lawyer-Matching Service

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/264/
• Original PDF: https://www.msbar.org/media/4910/ethics-opinion-264.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

ETHICS OPINION NO. 264

OF THE MISSISSIPPI BAR

RENDERED April 07, 2022

CAVEAT: This Opinion is limited strictly to the facts as presented for analysis under Mississippi’s Rules of Professional Conduct. The facts and questions outlined below, and the opinion rendered is limited to the ethical issues only.

ADVERTISING - LEAD GENERATOR- It is not permissible for an attorney to employ a lead generator service that manipulates potential clients by generating advertisements using John Doe’s (another attorney’s/law firm’s) trademark, name, or likeness without permission.

The Ethics Committee of the Mississippi Bar has been requested to render an opinion regarding the practice of an attorney hiring lead generator services that engage in the unauthorized use of John Doe’s (another attorney’s/ law firm’s) trademark, likeness, or name for advertising.

Applicable Rules and Analysis

Rule 7.1 of the Mississippi Rules of Professional Conduct (MRPC) provides that “[a] lawyer shall not make or permit to be made a false, misleading, deceptive or unfair communication about the lawyer or lawyer’s services.” Rule 7.7(a), MRPC, provides that “a lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.”

The practice of using John Doe’s firm name, likeness, or trademarked materials without permission from John Doe would constitute, false, misleading and deceptive communication, and is not permissible.

Rule 8.4 provides that “[i]t is professional misconduct for a lawyer to violate the rules of professional conduct, knowingly assist or induce another to do so, or do so through the acts of another [such as a lead generator].”

When an attorney retains a lead generator service to advertise on their behalf, Rule 5.3, MRPC, requires that the attorney make “reasonable efforts to ensure that the [lead generator’s] conduct is compatible with the professional obligations of the lawyer.”

Thus, it is impermissible for an attorney to knowingly employ a lead generator service that engages in the unauthorized use of John Doe’s trademark, name, or likeness in violation of Rule 7.1 and 7.7. Additionally, attorneys must exercise reasonable due diligence to ensure that the practices of a hired lead generator service do not run afoul of the MRPC.

Conclusion

Therefore, it is the opinion of this Committee that an attorney’s use of another’s name, trademark, or likeness without permission is not permissible, nor is it permissible for a third party (i.e. lead generator service) to engage in such activities on the attorney’s behalf.