tional practice is becoming the norm. In fact, the American Bar
Association’s Center for Professional Responsibility Policy
Implementation Committee endorsed the change and noted in its
comment that national uniformity is best because “[h]aving uniform
states’ rules of professional conduct has traditionally facilitated con-
sistent and predictable interpretations and applications of funda-
mental lawyer ethics concepts.”
It also makes sense considering that, due to advertising, many
law firms are already known more popularly by their billboard slo-
gans than by their “real” names.
But without getting too dramatic—even in an article quoting one
of the most famous dramatists of all time—many lawyers worry that
this change will have a profound effect on
the Arizona legal profession, much as
lawyer advertising did. In that realm, we
went from a profession in which a lawyer
once was found to have engaged in
“indiscretions and unethical practice” by
(among more serious misconduct)
“advertising by means of book matches” 2
to advertisements on buses and in sports
arenas and TV commercials.
This, considering that in 1987 the
Arizona Supreme Court cautioned
lawyers who choose to advertise to
they are professionals charged with
an important public trust: preserving
and protecting the public’s commer-
cial, civil, and constitutional rights.
Advertising that informs consumers
about their rights and about the availability and cost of legal
services is a valuable method of increasing access to legal repre-
sentation and of furthering the rule of law. 3
A Sea Change for Arizona
The Model Rules of Professional Conduct, which the ABA House
of Delegates adopted in August 1983, changed the longstanding
prohibition in the Code of Professional Responsibility against trade
names. As a result, as of August 1983, the profession flipped a
switch. Instead of prohibiting trade names, the then-new MR 7. 5
explicitly allowed private law firms to use trade names.
In February 1983, when the ABA House of Delegates debated
the Model Rules, the State Bar of Arizona delegates moved to
amend the MR 7. 5(a) proposal to keep the trade-name prohibition.
That amendment was defeated by a voice vote.
When the Arizona Supreme Court adopted the Model Rules
(effective Feb. 1, 1985), it did not adopt
the MR 7. 5(a) provision that allowed
private law firms to use trade names.
In 2002, when the State Bar’s Ethical
Rules Review Group reviewed the ABA’s
proposed sweeping “Ethics 2000”
changes to the Model Rules, it could
have recommended that Arizona remove
the trade-name prohibition and comport
with MR 7. 5(a), which by then had been
around for almost 20 years. ERRG did
not recommend jumping on the trade-name bandwagon but did not explain
why in its report. The reporter’s notes to
ERRG’s proposed amendments say only
that “Arizona, unlike the ABA Model
Rule, will continue to prohibit the use of
The State Bar Board of Governors
apparently agreed with that recommendation, although the State Bar’s resulting rule-change petition does
not offer any insights into why.
In 2008, the State Bar appointed the Consumer Information and
Education Task Force to consider lawyer advertising in general and
propose any necessary rule changes. After reviewing all applicable
Ethical Rules, the lawyer subgroup of the CIE task force recommended not changing ER 7. 5(a) to comport with MR 7. 5(a), saying in its report to the Board of Governors that it “considered
whether [ER 7. 5] should permit the use of trade names so long as
they are not misleading. The majority of the task force rejected that
As with all
the lawyer or the
lawyer’s services,” trade
names can’t be false or
misleading. But they
need not be tasteful or
As with all “communication about the lawyer or the lawyer’s
services”—a catchphrase that covers traditional concepts of mass
marketing as well as law firm names, business cards and letterhead—
trade names can’t be false or misleading. But the Ethical Rules don’t
require that communications regarding a lawyer’s services be tasteful or even dignified.
So what happens until the rule change takes effect?
ER 7. 5(a) currently says a trade name “may not be used” (emphasis added) by a lawyer in private practice.
Merely reserving a name or making business plans, including taking steps to change one’s name, shouldn’t
constitute “use” under ER 7. 5(a). If as a legal matter, however, you need to attest to using the name, then the
plain language of the current ER 7. 5(a) will be a problem for you. How can you attest to using a name when
you can’t ethically use it?
Law firms that wish to move to a trade name already may use slogans, so those slogans could be used in
conjunction with the non-trade name.
No Trade Name Use Until 2013