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. SeeN.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