9.1 Advertising and Firm Names (Rules 7.1, 7.5)

Section 9.1: Advertising and Firm Names (Rules 7.1, 7.5)

Introduction to Legal Communications

Under the ABA Model Rules of Professional Conduct, the regulation of how lawyers communicate their services represents a delicate balance. On one hand, the First Amendment protects commercial speech, and the public has a vital interest in receiving truthful, useful information to make informed decisions about hiring legal counsel. On the other hand, the legal profession must maintain high standards of integrity, preventing communications that are deceptive, overbearing, or misleading. The core of this regulatory framework is ABA Model Rule 7.1, which establishes a broad prohibition against any false or misleading statements. This standard applies to all communications about a lawyer’s services, including websites, billboards, television commercials, social media profiles, letterheads, and trade names.

The False or Misleading Standard (Rule 7.1)

Rule 7.1 dictates that a lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is defined as false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading. This is an objective standard: the question is whether a reasonable person reading or viewing the communication would be misled or form an unjustified expectation.

Material Omissions

A statement can be entirely true on its face but still misleading because of what it leaves out. For example, if a lawyer advertises that they "have never lost a jury trial," but omits the fact that they have only tried one case to a jury, the statement is technically true but materially misleading. A reasonable consumer would conclude that the lawyer has a wealth of successful trial experience, which is not the case. Similarly, stating that a firm handles "all types of injury cases" without disclosing that they routinely refer all complex cases to other firms is misleading.

Past Results and Unjustified Expectations

One of the most heavily tested areas on the MPRE is the advertising of past results, such as jury verdicts or settlements. Under the Comments to Rule 7.1, an advertisement that truthfully reports a lawyer’s achievements on behalf of clients or former clients may be misleading if it is presented in a way that leads a reasonable person to form an unjustified expectation that the same results can be obtained for other clients in similar matters.

Each case is unique and depends on its own specific factual and legal circumstances. Therefore, advertising a major victory (e.g., "Recovered $5 Million in Car Accident Case!") without providing context creates a substantial likelihood that a reasonable person will formulate a specific conclusion for which there is no reasonable factual foundation. To prevent a truthful statement about past results from being misleading, the lawyer must include an appropriate disclaimer or qualifying language. A disclaimer such as "Prior results do not guarantee a similar outcome" or "Each case is different and results depend on the facts and law of each case" is typically sufficient to dispel unjustified expectations.

Unsubstantiated Comparisons

Lawyers frequently want to compare themselves to their competitors. However, a comparison of the lawyer’s services or fees with those of other lawyers is misleading if it is presented with such specificity as would lead a reasonable person to conclude that the comparison can be substantiated, when in fact it cannot. For example, claiming "My fees are 30% lower than any other probate lawyer in the county" is misleading unless the lawyer has conducted a comprehensive survey to substantiate that claim. General statements of puffery, such as "Dedicated to excellent service," are generally permitted because they are not capable of precise measurement and do not mislead a reasonable person. But specific, comparative claims must be backed by verifiable data.

Use of Dramatizations and Actors

If an advertisement uses an actor to portray a lawyer or client, or utilizes a dramatization of an event (such as a simulated car accident or a mock courtroom scene), this must be clearly and conspicuously disclosed. Failing to disclose that a client is being played by an actor or that a testimonial is simulated is inherently misleading because it suggests that the actual client is speaking or that the event occurred exactly as depicted.

Firm Names, Letterheads, and Professional Designations (Rule 7.5 / Rule 7.2(c))

In 2018, the ABA amended the Model Rules to move the provisions of former Rule 7.5 regarding firm names and letterheads into Rule 7.2(c). However, the substantive rules remain highly active on the MPRE and in state jurisdictions. The primary rule is that a firm name, letterhead, or other professional designation must not violate the Rule 7.1 false or misleading standard.

Trade Names

Law firms are permitted to use trade names rather than the names of individual partners. For example, a firm may call itself "The Bankruptcy Law Group" or "The Metro Defense Clinic." However, a trade name cannot imply a connection with a government agency or a public or charitable legal services organization. For instance, naming a private, for-profit firm "The State Accident Board" or "Shelby County Legal Aid Office" is prohibited because it would lead a reasonable person to believe the firm is a government entity or a free legal aid clinic.

Multistate Practices and Jurisdictional Disclosures

Law firms with offices in multiple states may use the same firm name in all locations. However, the firm’s letterhead and directories must make clear the jurisdictional limitations of the lawyers working in those offices. If a lawyer is listed on a letterhead for a California office but is only licensed to practice in New York, the letterhead must clearly state "Admitted only in New York" or "Licensed in New York only." This prevents the public from being misled into believing that every lawyer associated with the firm is licensed to practice in every jurisdiction where the firm has an office.

Public Officials in Firm Names

A lawyer holding public office (such as a judge, attorney general, state senator, or mayor) who is not actively and regularly practicing with the law firm cannot have their name used in the firm name or in any communications on behalf of the firm. The name must be removed during any substantial period in which the lawyer is not actively and regularly practicing. For example, if Miller is elected as a full-time state appellate judge, the firm "Smith, Jones & Miller" must change its name to "Smith & Jones" or another name that does not include Miller. Keeping Miller’s name would mislead the public into thinking that a sitting judge is actively representing clients or that the firm has special influence with the judiciary.

False Partnerships and Office Sharing

Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. Independent practitioners frequently share office space, conference rooms, receptionists, and administrative expenses to reduce overhead. While this is entirely proper, these lawyers must be careful not to present themselves as a single firm. Using a joint name like "Davis & Evans, Attorneys at Law" or sharing a letterhead that lists both names at the top implies they are partners. This is misleading unless they have formed a legal partnership and share profits and liabilities. If they are independent, they must clarify their status, such as "John Davis, Attorney at Law, and Sarah Evans, Attorney at Law, Independent Practitioners Sharing Office Space." Misleading the public about a partnership not only violates ethics rules but can also result in joint liability for malpractice under the doctrine of partnership by estoppel.

Statement of Fields of Practice

Under the Model Rules, a lawyer may communicate that they do or do not practice in particular fields of law. For example, a lawyer may state that they "practice family law" or "limit practice to patent law." This is a straightforward statement of fact. However, stating that the lawyer is a "certified specialist" requires meeting rigorous regulatory standards, which are detailed under the specialization rules. A general statement of one's practice area is permitted as long as it is truthful and not misleading.