For the third time in almost four years, the New Jersey Supreme Court has heard arguments on whether ethics rules on naming law firms should allow use of a trade name rather than an alphabet soup of attorneys.
Perhaps fittingly, the Alpha Center for Divorce Mediation is the firm that offers to be the test case.
In 2007, the court’s Committee on Attorney Advertising, in Opinion 47, found that the Alpha Center’s name violates Rule of Professional Conduct 7.5, which says law firms generally must be named after the lawyers who run them.
The panel also said the name violates RPC 7.1, which prohibits advertising that raises misleading expectations.
A proposed amendment to RPC 7.5 would allow Alpha Center to use its name, as long as a managing attorney’s name is appended to the end.
On Wednesday the firm’s lawyer, Lumberton solo Robyn Hill, argued to the court that the rule as it stands violates free speech guarantees. “In our view, it’s not what has worked well, but whether what works in application violates the First Amendment, and it does,” said Hill, a former chief counsel to the Disciplinary Review Board.
Alpha Center’s name is “accurate, descriptive and informative and is not false, deceptive or misleading,” she said. “The current RPC imposes unconstitutional restrictions. The name does not imply any promise of results. The state has to provide evidence that people have been misled.”
Justice Anne Patterson asked what criteria the court should use, positing a hypothetical a firm wanting to call itself “Alpha Dog.”
“When you start bringing in animal names, there is some level of misrepresentation,” Hill replied.
“What about ’18 Personal Injury Lawyers?’” asked Justice Barry Albin.
So long as there were 18 personal injury lawyers in the firm, it shouldn’t pose a problem, Hill said.
Albin said he could “think of a variety of any conceivable trade name.”
Hill said lawyers would likely be careful what they choose. “They will think about how they want to be known. They won’t want to be flashy. They won’t want to be like car salesmen,” she said.
“Alpha also puts you in the front of the telephone book,” Albin remarked.
“That doesn’t violate any rules,” Hill said, adding that Alpha Center has used that name in Pennsylvania for nearly 20 years and has never had any problems.
“Does that make it the right thing to do?” Patterson asked.
“I think it does,” said Hill.
She also mentioned that using lawyers’ names can be misleading. For example, the namesakes of Newark’s McCarter & English and Haddonfield’s Archer and Greiner are dead.
Deputy Attorney General Kim Ringler said it was clear that the name Alpha Center for Divorce Mediation violates the RPCs as they now stand. But, she added, the committee is prepared to implement the proposed regulation if the court allows it to go into effect.
Ringler said 37 other states allow law firms to use trade names. Only Arizona, Ohio, Iowa and Texas require firms to use lawyers’ names, and Arizona will drop its restriction next year.
Indiana, Ringler said, is considering a rule that is similar to the one under consideration now. The proposed rule “is not blowing wide open the door to ‘Pit Bull Attorneys’ or ‘Better Than Anyone Else,’” she said.
Patterson raised the hypothetical situation in which a firm names itself after a particular field of practice and, at the request of a happy client, undertakes a matter unrelated to the field.
An occasional expansion would be permissible, “but there should be some guidelines,” Ringler said.
“What about ‘All Legal Services Group’?” asked Appellate Division Judge Ariel Rodriguez, temporarily assigned to the court.
That could possibly be allowed, Ringler said, adding that “the guidelines need to evolve.”
The amicus New Jersey State Bar Association opposes the rule change. “The Bar believes the current rule is constitutional, and it is opposed to any change on policy grounds,” said its lawyer, Metuchen solo David Rubin. “Unless it’s unconstitutional, there is no reason to change the rules.”
Rubin disagreed with Hill’s assertion that the state needs to show there has been harm in order to prevent the change. “You can use common sense and see that deception is likely,” he said. “There is virtual certainty that there will be deception and confusion.”
Albin said that doctors and other professional groups routinely use trade names and that has not created confusion or led to deception.
“What is the problem you’re trying to solve?” Rubin countered.
Albin said the court was trying to fashion a rule that is constitutional.
“I can’t point to any indication that there is any problem” with the rules as they stand now, said Rubin.
The court heard arguments in December 2008 and again in April 2011 in the case, Petition for Review of the Letter Decision of the Committee on Attorney Advertising, 47-2007.
Michael Booth is a reporter for the New Jersey Law Journal, a Legal affiliate.