option due to concern that permitting trade names would
further erode the dignity of the legal profession.”
The tide changed this year, however. That’s when
Michelle G. Breit, a lawyer licensed in both Arizona and California,
filed a petition asking the Court to follow the Model Rule.
In response, the State Bar’s Committee on the Rules of
Professional Conduct drafted a comment in support of Breit’s petition. The State Bar Board of Governors approved the comment and
filed it as the State Bar’s position.
The resulting comment noted that the constitutionality of the
trade-name ban “is more than an abstract concern” because of Michel
v. Bare. 4 In that case, as the State Bar’s comment explained:
[A] Nevada Supreme Court rule prohibiting the use of trade
names in private legal practice was held to violate the First
Amendment. Among other things, the [federal] court ruled that
the state bar had failed to establish a link between the trade
name ban and evidence that the ban was intended to address
an actual problem. Id. at 1151. It also ruled that “[a] blanket
restriction on the use of trade names, beyond the existing Rule
and Statute which already restrict false, deceptive, and mislead-
ing trade names, is more restrictive than necessary.” Id. at 1155.
Although it is possible that a court might reach a different result
with respect to Arizona’s rule, the decision in Michel suggests, at
a minimum, that a court might hold that Arizona’s blanket ban
on trade names suffers from the same constitutional infirmities.
In addition to the ABA and State Bar comments, the rule-change
petition attracted written comments from only a handful of lawyers—
Trade Name Steps and Missteps
by that treatise:
The ABA/BNA Lawyer’ Manual on
Professional Conduct includes a list of law-firm
trade names that courts and ethics opinions
have considered. A few of the examples cited
HOLLY KUCHER © SHU T TERS TOCK.COM
• “Your Legal Power” and “Su Poder Legal.” Michel v. Bare, 230
F. Supp. 2d 1147 (D. Nev. 2002).
• “[Historical Figure’s Surname] Law Firm,” reflecting the name
of a historical building in which the firm practices. Mich.
Informal Ethics Op. RI-173 (1993).
• “Product Liability Associates” for a firm that practices principally
in product liability cases. Phila. Ethics Op. 94-26 (1994). Not OK
• “University Legal Center” inaccurately suggests a formal relationship with the University of Alabama. Mezrano v. Alabama
State Bar, 434 So. 2d 732 (Ala. 1983).
• “Workers’ Compensation Relief Center” improperly implies affiliation with governmental agency. Calif. Ethics Op. 04-167
• “Med Law Associates” implies that the firm has a medical doctor
or personnel on staff as well as a specialty in medical malpractice
cases. Phila. Ethics Op. 89-21 (1989).
The State Bar’s comment explained that most U.S. jurisdictions
already allow trade names, with three dozen adopting or incorporating MR 7. 5(a) without imposing additional restrictions. Eight others—Florida, Georgia, Illinois, Indiana, Louisiana, Nebraska, New
Jersey and North Carolina—permit trade names but impose restrictions beyond MR 7. 5(a).
Arizona was one of only seven states that continued to prohibit
trade names, the others being Iowa, Kentucky, Mississippi, New
York, Ohio and Texas.
What’s in a (Trade) Name?
A 1991 Arizona Ethics Opinion relied on Black’s Law Dictionary to
conclude that a trade name consists of “any designation beyond a
simple listing of the names of the attorneys actually practicing with
the law firm,” and noted that ER 7. 5 included some exceptions, such
as for deceased members where there has been a continuing firm
The ban on trade names has meant that Arizona lawyers and their
law firms have had to create their identities by walking some fine lines
and abiding by rules that often produce illogical results, especially if
one assumes that a name is supposed to provide guidance to consumers. Here are a few examples from the longstanding rule regime:
• A firm may use the names of long-deceased partners.
That last point reflects exactly what prompted Breit’s petition that
resulted in the rule change. When Breit’s California law firm, which
uses the name Agility IP Law, wanted to open an Arizona office, it
had to use a different name here. Breit currently practices in Arizona
under the name Otteson Law Group, using the name of Jim
Otteson, the founder of Agility IP Law, because she couldn’t use the
name Agility IP Law.
Effective January 1, 2013, the Arizona office will be called Agility
IP Law. AZ AT
1. 433 U.S. 350 (1977).
2. In re Maltby, 202 P.2d 902 (Ariz. 1949).
3. Matter of Zang, 741 P.2d 267, 278 (Ariz. 1987).
4. 230 F. Supp. 2d 1147 (D. Nev. 2002).
5. Ariz. Ethics Op. 91-09 (April 2, 1991).