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THE ASSOCIATION
OF THE BAR OF THE CITY OF NEW YORK
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FORMAL OPINION 2003-01
LAWYERS’ AND LAW FIRMS’ SELECTION
AND ADVERTISING OF INTERNET DOMAIN NAMES
TOPIC: Lawyers’ and law firms’ selection and advertising
of internet domain names.
DIGEST: A lawyer or law firm may use a domain name that does not include
or embody the firm’s name or that of any individual lawyer, under
certain conditions: the web site bearing the domain name must clearly
and conspicuously identify the actual law firm name; the domain name
must not be false, deceptive or misleading; the name must not imply any
special expertise or competence, or suggest a particular result; and,
it must not be used in advertising as a substitute identifier of the
firm.
CODE: DR 2-102(B); DR 2-101
QUESTIONS: In choosing a domain name, is a lawyer obligated to follow
the rules applicable to the selection of law firm names, thus requiring
the domain name to comprise some variation of the law firm’s name?
If a domain name may under certain circumstances not include the law
firm name, may the law firm ethically advertise its services by reference
to its domain name rather than its firm name?
OPINION:
The Committee has received an inquiry regarding the selection of Internet
domain names for lawyers and law firms, and the corresponding use of
such domain names in advertising the services offered by such lawyers
and firms. This inquiry raises two questions of general significance
to the bar: First, in choosing a domain name, is a lawyer obligated to
follow the rules applicable to the selection of law firm names, thus
requiring the domain name to comprise some variation of the law firm’s
name? Second, if a domain name may under certain circumstances not include
the law firm name, may the law firm ethically advertise its services
by reference to its domain name rather than its firm name?
The Committee addresses these areas in the following factual context:
A law firm primarily engages in the representation of personal injury
plaintiffs. The law firm’s name consists of the names of three
of its partners and complies with the requirements of DR 2-102(B) relating
to law firm names. However, in considering its advertising and marketing
activities, the firm believes that it can achieve better results if it
is able to establish a web site using as its domain name a generic name
or phrase that contains the word “attorney” or “lawyer.” (Examples
of such an identifier might include phrases such as “Dial-a-lawyer” or “New
York Lawyer”). The firm has, accordingly, set up a web site that
does not include its lawyers’ names as part of the domain
name, but instead includes the generic name or phrase followed by “.com.” The
firm also wishes to advertise on television and radio using the domain
name as its primary identifier and to include client testimonials alluding
to the domain name rather than the name of the firm or any of its lawyers.
1. Law Firm or Attorney Domain Names
New York forbids a law firm or legal clinic from practicing under a
trade name or other name that does not convey the identity of one or
more of the lawyers practicing. DR 2-102(B) states in pertinent part:
“A lawyer 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 a firm name containing names other than those of one
of more of the lawyers in the firm ...” 1
Similarly, EC 2-11 states that "The name under which a lawyer practices
may be a factor in the [lawyer] selection process. The use of a trade
name or an assumed name could mislead non-lawyers concerning the identity,
responsibility, and status of those practicing thereunder.”
Numerous opinions from New York have prohibited a law firm from identifying
itself by a trade name because of the likelihood of confusion as to the
identity and composition of the firm. See N.Y. City 95-8 (prohibiting
trade name based on firm’s location; “the Code on its face
prohibits all forms of trade names, and opinions construing the Code
have applied that prohibition to locational trade names as well as other
types of trade names.”); N.Y. City 82-44 (improper to engage in
a law practice under the name "The 777 Lawyers Group"); N.Y.
State Bar Op. 709 (operating proposed law practice under trade name “The
Trademark Store” is impermissible); In re Shephard, 459 N.Y.S.2d
632, 633 (3rd Dep’t1983) (finding “The Peoples Law Firm” was
a prohibited trade name); In re Shapiro, 455 N.Y.S. 2d 604, 605 (1st
Dep’t 1982) (finding “Peoples Legal Clinic, Inc.” was
a prohibited trade name).
The threshold issue presented here is whether a law firm otherwise compliant
with the rules of DR 2-102(B) can establish a domain name that does not
include the names of one or more lawyers, but instead uses a “trade
name” or other terminology. There are no reported New York ethics
opinions on this subject.
Two states, Arizona and Ohio, have issued opinions stating that domain
names are not subject to the same regulation or scrutiny as a firm name
and are permissible unless they are false or
misleading. See Ohio 99-4; Arizona 97-04. In the Ohio opinion, the ethics
panel concluded that domain names were governed by the general rules
for lawyer advertising and, while it was preferable to use the firm
name as a domain name, it is “not improper for an attorney to
use letters, words or numbers provided that the domain name is not
a false, fraudulent, misleading, deceptive, self-laudatory or unfair
statement.” Nor can the domain name be permitted to “imply
special competence or experience.” The Arizona State Bar opinion
agreed that domain names were subject to the general advertising rules
against false or misleading communications, and concluded that: (1)
a law firm’s use of “countybar.com” was misleading
because it falsely implied an affiliation with the county bar association;
and (2) the designation “arizonalawyer.org” was misleading
because the top level domain name “.org” falsely indicated
that the firm was a non-profit organization.
The Committee notes that many New York lawyers and law firms have established
domain names that closely track the firm name. We also note the risk
that permitting domain names that do not include any reference to the
name under which the firm practices might in some cases cause some initial
confusion among visitors to a web site. However, the Committee believes
that the mere designation of a domain name does not mean that the firm
or lawyer is “practicing” law under that name; accordingly,
DR 2-102(B)’s strictures on law firm names should not apply and,
instead, the selection of a domain name is more appropriately governed
by the ethical rules and considerations affecting legal advertising and
publicity. See DR 2-101. In so concluding, we specifically do not address
the First Amendment and other legal issues that may affect attorney advertising,
solicitation of business and professional designations because these
issues are beyond the scope of this Committee’s jurisdiction.
As a matter of legal ethics, we conclude that a lawyer or firm may employ
a domain name that does not include the names of lawyers under the following
conditions:
(1) The web site clearly and conspicuously includes the actual
name of the law firm and the law firm in no way attempts to engage
in the
practice of law using the domain name. At a minimum, the web site
must clearly present information including the law firm’s
name, office address and the telephone number of the attorney or
law firm (DR 2-101(K));
(2) The domain name complies with DR 2-101(A), which forbids “any
public communication or communication to a prospective client containing
statements or claims that are false, deceptive or misleading.”
(3) The domain name does not imply any special expertise or competence,
or suggest a particular result. In this regard, we note the abundance
of existing law firm domain names accessible on the Internet that
would appear to violate this requirement, e.g., “bigverdict.com” and “bigjudgment.com.” In
addition, although New York’s Code includes no specific prohibition
on puffery or
statements that cannot be objectively verified, we believe names that
seek to promote the lawyer’s skill or talent may be considered
misleading, e.g., “bestlawyer.com,” “greatattorney.com,” and “personalinjuryexpert.com.”
2. Use of Domain Names in Advertising
Having concluded that it is permissible under certain circumstances
for a law firm or lawyer to employ a domain name that does not embody
the name of the firm or its lawyers, we believe this domain name may
be publicized in advertising so long as the domain name is used to identify
a web site rather than as a substitute identifier for the firm. Thus,
assuming the law firm was authorized to use the “NewYorklawyer.com” domain
name, it would be permissible to refer to that domain name for the purpose
of directing readers or listeners to the firm’s web site, but it
would not be permissible to refer to the services offered by “NewYork
lawyer” or otherwise to replace the law firm’s name with
its domain name in describing itself, its services or its personnel.
Similarly, a lawyer or law firm may use bonafide, non-misleading client
testimonials in advertising provided the clients do not use the domain
name as a sobriquet or substitute for the firm’s name. It would
presumably be ethical for the client to identify the domain name as a
means to learn more about the firm.
Conclusion
As set forth above, we conclude that it is ethical under certain circumstances
for a lawyer or law firm to employ a domain name that does not include
or embody the firm’s name or that of any individual lawyer. However,
we caution that domain names may not be used as a substitute identifier
for the law firm and must comply with the strictures of DR 2-101 as applied
to legal advertisements generally.
Issued: May, 2003
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