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This website allows you to electronically file and monitor court rule petitions and comments and to view existing rules of court, recent amendments of those rules, and pending rule petitions and comments. Any visitor to this site may view posts on this website, but to post a petition or comment you must register and log in. To view instructions on how to register and how to file a petition or comment, please visit our Frequently Asked Questions (FAQ) page. 
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Last Post 21 May 2012 03:55 PM by  Gary.Dukarich
R-11-0046 Ariz. R.S.Ct. 42, ER 7.5
 7 Replies
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Otteson Law Group
Posts:

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29 Dec 2011 04:10 PM
    R-11-0046
    Petition to Amend Rule 42, ER 7.5(a), Rules of the Supreme Court

    Would eliminate the prohibition against trade names for law firms

    Michelle G. Breit
    14350 North 87th Street, Suite 190
    Scottsdale, AZ 85260
    Telephone: 480-646-3434
    Facsimile: 480-646-3438
    mbreit@agilityiplaw.com
    SBN 021439

    Filed: December 29, 2011

    Comments due May 21, 2012.

    ADOPTED as modified, effective January 1, 2013.
    Attachments
    LYNDA SHELY
    Posts:

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    02 Mar 2012 02:41 PM
    Lynda C. Shely
    The Shely Firm PC
    6501 E. Greenway Parkway
    Suite 103-406
    Scottsdale, Arizona 85254
    480-905-7237
    Lynda@Shelylaw.com
    #015549

    I support the Petition to Amend Ethical Rule 7.5 to eliminate the prohibition against trade names for law firms. There is no public protection or other state interest in restricting factually accurate commercial speech in the form of law firm trade names.

    ABA Model Rule 7.5 has permitted trade names since 1983. There is no evidence of increased consumer confusion since law firms started using trade names in the majority of other US jurisdictions. ER 7.1 will continue to prohibit lawyer communications that contain "false or misleading" information, which would cover trade names that are false or misleading.

    Arizona's prohibition against trade names restricts national law firms from opening offices in Arizona and employing Arizona lawyers unless the firm creates a fictitious name to use in just Arizona, which actually could generate more consumer confusion than simply using the nationally known trade name. There is no evidence that a consumer of legal services is less confused about a law firm's identity when it uses, for instance, the names of two deceased out-of-state lawyers (which the current Rule permits) than using an accurate trade name.
    djc6394
    Posts:

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    31 Mar 2012 11:13 AM
    D. Jeffrey Craven
    5450 E High St. Ste 300
    Phoenix AZ 85054
    480-222-2225
    j.craven@smithcraven.com
    #020799

    I support the petition to Amend Ethcial Rule 7.5 to eliminate the prohibition against trade name usage by law firms. The purpose behind a trade name is normally to establish some distinction that makes one business stand out from others. Unless a name conveys statements that would clearly confuse a person (e.g., similarity with other law firm trade names), or states something that would clearly violate ER 7.1, I believe even "fanciful" names should be permitted.

    Relative to similarity of names, there already exists a body of law to protect such issue. Indeed, with the requriement that a lawyer's last name be used in the firm name, there is actually a potential for confusion to clients because of the number of lawyers with the same last name. So, at the least the existing rule does little more to prevent the problem than trade name laws do.

    Fanciful names give greater opportunity for law firms to develop public familiarity and to brand themselves apart from one another. In most circumstances, this would enhance public awareness. As mentioned by the petitioner, a name that would otherwise violate the Ethics rules (e.g., "Guaranteed Results Firm") would still be subject to preclusion and regulation by the Supreme Court and the State Bar. The petitioner mentioned the regulation of a name like "Scottsdale Bankruptcy Firm" where the firm was not located in Scottsdale, did not practice bankruptcy, or both. While the ERs would likely still prohibit this type of name as a misrepresentation, even if it did not, the reality is that in today's highly connected environment it would take little time for the public to learn of the same, and such misuse would quickly prove counterproductive to the firm. In other words, market forces would likely drive the firm to correct the "false" name even without regulatory oversight.

    Absent a reputable scientific study to confirm that trade names cause confusion in the legal arena, the current regulation is unreasonably restrictive. Given that the ABA modified its model rule over 27 years ago, and that some 32 states have allowed trade names with no apparent issue, it appears that Arizona's ER 7.5 is designed to protect against a non-existent problem.
    MJCLARK8
    Posts:

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    11 Apr 2012 02:50 PM
    Mari Jo Clark
    Clark Law Offices
    3700 N. 24th Street, Ste. 120
    Phoenix, AZ 85016
    602.956.3328
    mjc@clarklawaz.com
    #022842
    I support the petition. I think that consumer confusion will decrease. As a sole practitioner I was required to use my last name for my start-up firm although the practice area already had another attorney practicing in the same practice area just down the street from my office. More than once his clients showed up at my office.
    gtrachtenberg
    Posts:

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    11 Apr 2012 10:42 PM
    Geoffrey M. Trachtenberg, SBN 019338
    Levenbaum & Cohen
    362 N. 3rd Avenue
    Phoenix, Arizona 85003
    Telephone: (602) 271-0183
    Facsimile: (602) 271-4018
    Email: gmt@lclegal.com

    I support the Petition to Amend Ethical Rule 7.5 to eliminate the prohibition against trade names for law firms for the reasons stated in the Petition as well as those expressed by Lynda C. Shely. Respectfully, a blanket restriction of accurate and non-misleading commercial speech in the form of a law firm trade name is an unconstitutional and unjustified infringement of First Amendment rights.

    Arizona should join the overwhelming majority of other jurisdictions that have adopted the ABA Model Rule, which has been in place for almost 30 years, and adopt the changes in the Petition.
    JAH1970
    Posts:

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    20 Apr 2012 12:01 PM
    John Holtaway
    321 North Clark Street, 17th Floor
    Chicago, IL 60654
    (312) 988-5298
    (312) 988-5491
    john.holtaway@americanbar.org


    The American Bar Association Center for Professional Responsibility Policy Implementation Committee recommends that the Arizona Supreme Court amend Rule 42, ER 7.5(a), Rules of the Supreme Court, to allow for the use of trade names by law firms. In 1983, the American Bar Association adopted Rule 7.5 of the Model Rules of Professional Conduct, which allows a lawyer in private practice to use a trade name if it does not imply a connection with a government agency or with a public or charitable legal services and is not otherwise in violation of Rule 7.1 of the Model Rules. Model Rule 7.1 continues to prohibit lawyer communications that contain "false or misleading" information. A majority of United States jurisdictions have adopted a version of Model Rule 7.5 that allows for the use of trade names. Of additional concern to the Committee, however, is the desirability of having lawyer ethics case law develop uniformly throughout the country. Having uniform states’ rules of professional conduct has traditionally facilitated consistent and predictable interpretations and applications of fundamental lawyer ethics concepts.
    AZStateBar
    Posts:

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    14 May 2012 02:54 PM
    John A. Furlong, Bar No. 018356
    General Counsel
    State Bar of Arizona
    4201 N. 24th Street, Suite 100
    Phoenix, Arizona 85016-6266
    602.252.4804
    John.Furlong@staff.azbar.org
    Attachments
    Gary.Dukarich
    Posts:

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    21 May 2012 03:55 PM
    Gary Dukarich
    P.O. Box 14086
    Tempe, AZ 85284-0069
    (602) 288-3325
    gdukarich@sle-law.com
    Bar No. 012119

    I support the petition to amend Ethical Rule 7.5. The amendment would beneficially level the playing field as between larger and smaller law firms.

    Current Rule 7.5 creates a disparity and a name recognition advantage enjoyed by larger firms over smaller ones. Larger firms may within the current Rule establish de facto trade names by brandishing a “continuing succession in the firm’s identity” (cmt. 1) that smaller firms cannot match, even though that “continuing . . . identity” may have little to do with the actual constitution of or personnel within the firm. Taking Mr. Lewis and Mr. Roca as a random example, they have been gone for some time now, and Lewis & Roca now enjoys what amounts to a fictitious-name trademark that need never change, regardless of the volume of attorney turnover in that firm or any change in the essential character of the firm. While smaller firms also possess the theoretical ability to segregate out retired or deceased partners under the current Rule to achieve such a trademark, this is of little value in actual practice.

    The concept of carrying business goodwill focused in a recognizable trade name or trademark is a proper and ethical business practice, as recognized in the state and federal trademark laws. It is a benefit that should be extended equally to the legal profession, and equally in turn to all firms within that profession regardless of their size.
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