Can a West Virginia law firm advertise under a trade name while doing business under a different name made up of the partners' names?

Plain-English summary

The Lawyer Disciplinary Board considered whether a law firm may use a trade name for advertising purposes only while actually conducting business under a different name containing the partners' names. The Board started from Rule 7.5(a) and (b): a trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or a public or charitable legal services organization and is not otherwise in violation of Rule 7.1, and a multistate firm may use the same name in each jurisdiction. The Board read Rule 7.5(b) as implying that a firm practicing in more than one jurisdiction may use more than one name, then framed the question as whether using both a trade name and a firm name within the single jurisdiction of West Virginia violated Rule 7.1(a).

The Board explained that Rule 7.1 bars misleading communications about a lawyer's services and that Rule 7.2 makes clear a lawyer may advertise subject to Rule 7.1. A misleading communication is one containing material misrepresentations of fact, or omissions of fact necessary to make the statement as a whole not materially misleading. The Board concluded that advertising under a trade name that, in effect, conceals the identity of the law firm is misleading, because potential clients do not know what firm they are contacting in response to the advertisement, and existing clients do not realize the firm they retained is soliciting certain types of cases under a trade name.

The Board therefore found it mandatory that every law office designate all firm or trade names it uses in all communications, particularly in advertising. Failing to note all trade names and firm names under which the office operates is a material omission of fact necessary to make a statement as a whole not materially misleading, and therefore violates Rule 7.1(a).

Currency note

This opinion was issued in 1997, before the West Virginia Supreme Court of Appeals' comprehensive 2015 revision of the West Virginia Rules of Professional Conduct (effective January 1, 2015). 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Could a West Virginia firm advertise under a trade name different from its operating name?

A: Only with disclosure. The opinion concluded it is misleading to advertise under a trade name that conceals the firm's identity, and required the office to designate every trade and firm name it uses.

Q: Why was a concealing trade name treated as misleading?

A: The Board reasoned that potential clients would not know which firm they were contacting in response to the ad, and existing clients would not realize their own firm was soliciting certain cases under a trade name, which it treated as a material omission under Rule 7.1(a).

Q: What did the firm have to do to comply?

A: The opinion stated it is mandatory that each law office designate all firm or trade names it uses in all communications, particularly in advertising.

Background and rules framework

The opinion interpreted West Virginia's advertising rules as they stood in 1997. Rule 7.5 (Model Rule 7.5) governed firm names and letterheads, permitting a trade name in private practice if it did not imply a government or charitable connection and did not otherwise violate Rule 7.1. Rule 7.1 (Model Rule 7.1) barred misleading communications, defining a misleading communication to include omissions of fact necessary to keep a statement from being materially misleading. Rule 7.2 (Model Rule 7.2) confirmed a lawyer may advertise subject to Rule 7.1.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / WV Rule 7.1, 7.1(a) (misleading communications; material omissions)
• Model Rule 7.2 / WV Rule 7.2 (advertising subject to Rule 7.1)
• Model Rule 7.5 / WV Rule 7.5(a), (b) (firm names and letterheads; trade names)

See also

• WV Ethics Op. 99-01: Insurance Company Captive Law Firms
• ABA Formal Op. 94-388: Relationships Among Law Firms
• Alabama Ethics Op. 1993-11: "Associates," "Law Firm," and "Law Offices"
• Alabama Ethics Op. 1994-12: Letterhead and Business Cards

Source

• Landing page: https://wvodc.org/Legal-Ethics-Opinion
• Original PDF: https://storage.googleapis.com/msgsndr/Rgd68xOkcVdteTsBkf6O/media/66a7ea7e8f665564fc5ace4c.pdf

Original opinion text

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

L.E.I. 97-01

USE OF A TRADE NAME FOR ADVERTISING PURPOSES

The Lawyer Disciplinary Board considered the following question:

May a law firm use a trade name for advertising purposes only when it actually conducts business under a different name containing the names of the partners of the firm.

Rules 7.5(a) and (b) of the Rules of Professional Conduct provide:

Rule 7.5. Firm Names and Letterheads.
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

It is implicit in Rule 7.5(b) that when a law firm practices in more than one jurisdiction that the use of more than one name may be permitted. The question then becomes whether Rule 7.1(a) is violated by the use of both a trade name and a firm name within the single jurisdiction of the State of West Virginia.

Rule 7.1 of the Rules of Professional Conduct precludes the use of misleading communications with regard to a lawyer's services. Rule 7.2 of the Rules of Professional Conduct make clear that a lawyer may advertise subject to the requirements of Rule 7.1. A misleading communication is defined as one which contains material misrepresentations of fact or omissions of fact necessary to make the statement as a whole not materially misleading.

The Board is of the opinion that it is misleading to advertise under a trade name which, in effect, conceals the identity of the law firm because potential clients do not know what firm they are contacting in response to the advertisement and other clients of the firm do not understand or realize that the law firm they have retained is soliciting certain types of cases under a trade name.

Therefore, the Lawyer Disciplinary Board finds that it is mandatory that each and every law office designate all firm or trade names which it uses in all communications, particularly in all advertising. The failure to note all trade names and firm names under which the law office operates is a material omission of fact necessary to make a statement as a whole not materially misleading and therefore constitutes a violation of Rule 7.1(a) of the Rules of Professional Conduct.

APPROVED this 17th day of October, 1997.

Paul M. Friedberg, Chairperson
Lawyer Disciplinary Board
State of West Virginia