Can a lawyer who is not a certified specialist use a trade name that names a practice area, like 'Midlands Bankruptcy Counselors, LLC'?

Plain-English summary

A lawyer formed an LLC with a trade name reflecting the field he intended to concentrate in, using "Midlands Bankruptcy Counselors, LLC" as the example, although he was not a certified specialist in that area. He wanted a yellow-pages box and a newspaper ad (avoiding the words "certified," "experts," "specialists," or "authority" and identifying the responsible attorney) and a website educating prospective clients. The committee was asked whether a trade name that includes a Supreme-Court-recognized specialty field is false or misleading under Rule 7.1 when the lawyer is not certified, and if so, whether a proposed "NOT CERTIFIED" disclaimer would cure it.

The committee analyzed Rule 7.5(a), which permits trade names subject to two limits: the name may not imply a connection with a government agency or legal-services organization, and it may not violate Rule 7.1's bar on false, misleading, deceptive, or unfair communications. On the first limit, the committee drew a close-call distinction between names using a specific governmental entity or subdivision ("South Carolina," "Greenville," "Horry"), which are more suggestive of a public agency and more likely to need a disclaimer, and names that are simply geographic ("Lowcountry," "Pee Dee," "Midlands"), which are not. On the second limit, it concluded that while only properly certified lawyers may hold themselves out as specialists under Rule 7.4, merely including a practice area in a trade name does not by itself create a misleading inference of certified specialization.

The committee reasoned from the comment to Rule 7.4, which lets a lawyer indicate areas of practice even without specialist certification, and from the established permission for a non-specialist to use his own name as the firm name and state that the firm limits its practice to a specific area. It saw no reason a more restrictive rule should apply to trade names than to other communications about a firm's areas of practice, and no reason it should matter whether the named area is one in which certification is offered. The firm name, like any communication, may not use "certified," "specialist," "expert," or "authority" unless the lawyers are in fact certified specialists. Given this, the committee concluded the proposed disclaimer was not necessary, though there would be no harm in including it.

In practice

Under the South Carolina rules as they stood at the time of the opinion, the committee held that a non-specialist lawyer may use a trade name that names a practice area if the firm actually concentrates in that area, that purely geographic terms (unlike specific government-entity names) do not require a disclaimer under Rule 7.5, that naming a practice area does not by itself imply certified specialization under Rule 7.4, and that the words "certified," "specialist," "expert," or "authority" remain off-limits absent actual certification, making the proposed disclaimer permissible but unnecessary. South Carolina revised its Rules of Professional Conduct effective 2005, and the advertising rules (including specialization under Rule 7.4) were later amended; verify the current text of Rules 7.1, 7.4, and 7.5 before relying on the specific provisions cited.

Common questions

Q: Can a non-specialist name a practice area in the firm's trade name?

A: The committee concluded yes, as long as the firm actually concentrates its practice in that area; naming a practice area does not by itself imply certified specialization.

Q: Does a geographic word in the trade name require a disclaimer?

A: The committee concluded that purely geographic terms like "Midlands," "Lowcountry," or "Pee Dee" do not, but names using a specific government entity or subdivision ("South Carolina," "Greenville," "Horry") are more likely to require a disclaimer.

Q: Which words are still off-limits in the name?

A: The committee concluded the firm name may not use any form of "certified," "specialist," "expert," or "authority" unless the lawyers are in fact certified specialists.

Q: Is the proposed "NOT CERTIFIED" disclaimer required?

A: The committee concluded the disclaimer is not necessary given that the trade name is not misleading, though there would be no harm in including it if the lawyer wished.

Background and rules framework

The opinion interprets South Carolina RPC 7.5(a) (trade names), 7.1 (false or misleading communications), and 7.4 (communication of fields of practice and specialization), corresponding to the like-numbered Model Rules, including the comments to Rules 7.4 and 7.5 on indicating practice areas and on geographic designations.

Citations and references

Rules of Professional Conduct:

• South Carolina RPC 7.5(a) / Model Rule 7.5: trade names; no implied government connection and no Rule 7.1 violation.
• South Carolina RPC 7.1 / Model Rule 7.1: false, misleading, deceptive, or unfair communications.
• South Carolina RPC 7.4 / Model Rule 7.4: communicating fields of practice; specialist certification.

See also

• SC Bar Ethics Op. 03-04: The trade name "Capitol Counsel, L.L.C."
• SC Bar Ethics Op. 02-19: Successor firm names and a deceased partner's name in wind-down

Source

• Landing page: https://www.scbar.org/for-lawyers/quicklinks/legal-resources/ethics-advisory-opinions/ethics-advisory-opinion-03-10/

Original opinion text

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

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.

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.