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Sunday, February 26, 2006

Ind. Courts - Certified specialties and limitations on law firm names

Ed Feigenbaum has agreed to share this story from the Feb. 27th issue of his weekly publication, Indiana Legislative Insight:

Attorneys and law firms may soon be able to be a bit more descriptive in their trade names. The Indiana Supreme Court late last month ordered the Supreme Court Disciplinary Commission to submit an amicus curiae brief addressing three questions:
  • Does the use of the word “bankruptcy” in “The Bankruptcy Law Offices of Mark S. Zuckerberg, P.C.” violate the Indiana Rules of Professional Conduct?

  • If so, should the Rules be amended to permit law firm names such as the one Zuckerberg desires?

  • If so, show should the Rules be so amended?
The Disciplinary Commission files its amicus brief noting that the prohibition against use of trade names by attorneys is “grounded in a concern that the names under which lawyers practice not mislead the public,” but “The flat prohibition on trade names masks that underlying concern and sweeps too broadly if applied to the use of trade names that are not misleading and, in some instances, might be of value to consumers of legal services .... By including in law firm name a reference to the exclusive practice area of the firm, the firm name, while technically a trade name, is truthful and not misleading to the public. In fact, by prominently communicating a limitation on the law firm’s area of practice, the firm name may be of value to the public by discouraging potential clients with irrelevant legal problems from wasting time contacting the firm [emphasis added].”

The brief, however, urges that “the flat trade name prohibition” be studied “to give better notice to the bar about what does and does not fall within that prohibition.” While backing the use of the word “bankruptcy” in the trade name matter before the Court, the Commission seeks deferral of additional consideration of the broader application of the trade name prohibition until the Indiana State Bar Association completes its review of the relevant Rules of Professional Conduct.

Here are some materials the ILB has assembled that have relevance to the Indiana Legislative Insight story.

First, here is the text of an early ILB entry, from 3/24/03:

Indiana Decisions - Attorney "Specializing in"
In the Matter of Anonymous (Ind.S.Ct. 3/4/03)
Per Curiam
The Court issued a private reprimand to two attorneys for violating the Rules of Professional Conduct for Attorneys at Law by advertising themselves as "specialists" when they had not been certified as such. Specifically, they placed an ad in the 2001-02 edition of a small, privately-owned directory service in NW Indiana, prominently including the words "Elder Law Specialists."

The Court states "In order for an attorney in this state to hold herself out to the public as a 'specialist,' the attorney must be certified as such pursuant to the provisions of" Rules 30, section 5 and 6 of Indiana Rules of Court - Rules for Admission to the Bar and the Discipline of Attorneys." More:

The respondents were not certified as “Elder Law Specialists” pursuant to Admis.Disc.R. 30. Because the respondents advertised themselves as specialists when in fact they had not been so certified, we find that they violated Ind. Professional Conduct Rule 7.1(b) by using or participating in the use of a form of public communication containing a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim. Within the non-exclusive list of such statements or claims is any statement or implication that “a lawyer is certified or recognized as a specialist other than as permitted by Rule 7.4.” ... A lawyer is not prohibited from communicating the fact that the lawyer does or does not practice in particular fields of law, but may not express or imply any particular expertise except as otherwise provided in Prof.Cond.R. 7.4(b). Prof.Cond.R. 7.4(a).
Second, what do the Court's rules say?

Rule 7.5(b) of the Rules of Professional Conduct [Rule 7.5. Professional Notices, Letterheads, Offices, and Law Lists] states in part:

A lawyer shall not practice under a name that is misleading as to the identity, responsibility, or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, deceptive, self-laudatory or unfair within the meaning of Rule 7.2, or is contrary to law. In that it is inherently misleading, a lawyer in private practice shall not practice under a trade name.
Rule 7.4, Communication of Specialty Practice, provides:
When the communication otherwise meets the requirements of Rules, 7.2, 7.3, and 7.5, a lawyer may:

(a) communicate the fact that the lawyer does or does not practice in particular fields of law, but may not express or imply any particular expertise except as otherwise provided in Rule 7.4(b);

(b) communicate that the lawyer is certified as a specialist in a field of practice when the certification and communication are authorized under Admission and Discipline Rule 30.

(c) Notwithstanding subsection (b), a lawyer admitted to engage in patent practice before the United States Patent and Trademark Office may use the designation “Patent Attorney” or a substantially similar designation, and a lawyer engaged in Admiralty practice may use the designation “Admiralty,” “Proctor in Admiralty” or a substantially similar designation.

Third, what are the specialities in which an Indiana practitioner may be certified? Here is the Indiana Courts page on Attorney Specialization. Here is the page with the list of Independent Certifying Organizations for Indiana. There are currently four specialities listed in which a qualified Indiana practitioner may be certified:
Business and Consumer Bankruptcy;
Civil Trial Advocacy and Criminal Trial Advocacy;
Elder Law; and
Family Law.
Using the page, certified Indiana practitioners may be located.

Posted by Marcia Oddi on February 26, 2006 08:35 AM
Posted to Indiana Courts