Editor's Note:
State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.
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Is it proper to use a single "trade name" for a law office and, if so, is it proper to use multiple trade names for the same law office?
It is permissible for attorneys to use a single "trade name" for a law office, so long as it otherwise complies with rule 2-101 of the Rules of Professional Conduct and Business and Professions Code section 6164.
Rule 2-101 of the Rules of Professional Conduct of the State Bar.
Business and Professions Code section 6184.
The Committee has received numerous requests for an opinion regarding the propriety of using a "trade name" to identify a law office as opposed to using a name that clearly contains the name of a member of the State Bar. It is the opinion of the Committee that the effect of the repeal of former rule 2-103(B) of the Rules of Professional Conduct by the Supreme Court of the State of California, effective April 1, 1979, is to permit the use of trade names by attorneys.
Former rule 2-103(B) of the Rules of Professional Conduct provided,
"A member of the State Bar in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or any name other than a firm or corporate name containing the name of one or more of the lawyers in the firm, except that the name of a professional corporation shall contain the words or wording or abbreviations denoting corporate existence, and if otherwise lawful a firm may use as, or continue to include in, its name, the name or names of the firm or of a predecessor firm in a continuing line of Succession."
This rule was repealed by the California Supreme Court, on the recommendation of the Board of Governors of the State Bar.
There is a general presumption that repeal of a statute is intended to change the law. However, the courts will not presume that a repeal is intended to overthrow tong-established principles of law, unless that intention is made clear by express declaration or necessary implication. (In re W. R. W. (1971) 17 Cal. App.3d 1029, 1036 [95 Cal.Rptr. 354].)
By analogy, is the Supreme Court's repeal of former rule 2-103(B) of the Rules of Professional Conduct an intent to permit the use by attorneys of "trade names"? Although that intention is not indicated expressly in the rules, the Committee believes that it is clear by implication that the intent of the Board of Governors and the Supreme Court was to permit such use.
Statements in legislative reports concerning the statutory purposes which are in accordance with a reasonable interpretation of the statute will be followed, and it will be presumed that the Legislature adopted the proposed legislation with the intent and meaning expressed in the Committee reports. (In re Marriage of Paddock (1971) 18 Cal.App.3d 355, 359 [95 Cal.Rptr. 652].) When the Board of Governors and Supreme Court are acting in a legislative capacity in formulating, adopting and approving rules of professional conduct, pursuant to section 6077 of the Business and Professions Code, these principles of statutory construction are instructive in determining their intent.
The effect of the repeal was discussed in the Final Report and Recommendation of the Special Committee on Lawyer Advertising and Solicitation, November 1978 (at pp. 25-26):
"This proposal recommends the repeal of present rule 2-103(B), which prohibits the use of trade names. Thus, members of the State Bar may practice under trade or fictitious business names, subject to the general false, deceptive and misleading standards set forth in proposed Rule 2-101.
"It should be noted that the misleading character of a trade name may be measured by the following standards, among others: Whether it implies that the firm is publicly supported (as, for example, by including the words 'Legal Services'), whether it is deceptive with respect to the identities of the member of the bar who is performing professional services, and whether it is misleading as to the types of services offered. Use of the words 'clinic' or 'legal clinic' in conjunction with the names of the members of the bar who are performing services has been validated by the California Supreme Court. (Jacoby v. State Bar (1977) 19 Cal.3d 359, 366) and the United States Supreme Court (Bates v. Arizona State Bar 433 U.S. at 350, [97 S.Ct. at 2708]) so long as the firm in fact engaged in a clinic-type practice.
"Although the repeal of this rule would eliminate the requirement of present rule 2-103(B) that lawyers use the name of the members of the firm in the firm name as to sole practitioners and partnerships, Business and Professions Code section 6164 requires that the name of a professional corporation is limited to the names of shareholders and that it also include the words 'professional corporation' or other wording denoting corporate existence."
Since the Board of Governors and the California Supreme Court had this report before them in considering the proposed repeal of former rule 2-103(B) of the Rules of Professional Conduct, it is presumed that they adopted the intent and meaning expressed in this report.
Although attorneys are now permitted to use trade names, such use is not without restriction. As indicated above, section 6164 of the Business and Professions Code requires the name of a law corporation be restricted to the names of shareholders and include the words "professional corporation," or other words denoting corporate existence.
In addition, names of firms, offices, organizations or other entities under which a member of the bar holds himself or herself out to the public as practicing law are considered "communications" within the meaning of rule 2-101 of the Rules of Professional Conduct. (See also Jacoby v. State Bar (1977) 19 Cal. 3d 359, 378-380 [138 Cal. Rptr. 77, 562 P.2d 1326].) Such names are therefore subject to the requirements imposed by that rule with respect to (1) false, deceptive or misleading statements, (2) representations of specialization, and (3) presumptions promulgated by the Board of Governors pursuant to the provisions of rule 2-101(D) of the Rules of Professional Conduct. It is the opinion of the Committee that rule 2-101 was intended to apply to names of firms, offices, organizations or other entities under which a member holds himself or herself out to the public as practicing law, including trade names.1
This opinion is issued by the Standing Committee on Professional Responsibility and Conduct of The State Bar of California. It is advisory only. It is not binding upon the courts, The State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.
1 We do not here address the question of when an attorney may ethically use more than one "trade name."
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