D. Jeffrey Craven
5450 E High St. Ste 300
Phoenix AZ 85054
480-222-2225
[email protected]#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.