State Bar of Arizona Ethics Opinions

01-05: Advertising and Solicitation; Name of Firm; Internet
3/2001

A law firm domain name does not have to be identical to the firm's actual name but it otherwise must comply with the Rules of Professional Conduct including refraining from being false or misleading nor may it imply any special competence or unique affiliations unless factually true. A for-profit law firm domain name should not use the top level domain suffix ".org" nor should it use a domain name that implies that the law firm is affiliated with a particular non-profit organization or governmental entity. [ERs 7.1, 7.4, 7.5]

FACTS[1]

 

A law firm inquires regarding the applicability of the Rules of Professional Conduct to Internet domain names for a law firm website.  Specifically, the firm would like to use a domain name that includes the county in which the firm is located with the word "bar" and ended with the primary domain suffix ".com" to read "countybar.com."  Alternatively, the firm would like to use the domain name "arizonalawyer.org."

 

QUESTIONS PRESENTED

 

  1. Whether a law firm ethically may use a domain name that is different than the law firm name? 
  2. Whether a law firm ethically may use a domain name "countybar.com" when the county listed in the address is the actual county where the firm's office is located? 
  3. Whether a law firm ethically may use a domain name "arizonalawyer.org" when the firm members are in fact Arizona lawyers but the law firm is not a non-profit organization? 

RELEVANT ETHICAL RULES

 

ER 7.1.            Communications and Advertising Concerning a Lawyer's Services

 

            (a)            A lawyer shall not make false or misleading communication about the lawyer or the lawyer's services.  A communication is false or misleading if it:

 

(1)            contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;

 

(2)            is likely to create an unjustified expectation about results the lawyer can achieve or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law;

 

(3)            compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated;

 

                        (4)            is a factual statement which cannot be factually substantiated.

 

* * * *

 

ER 7.4.            Communication of Fields of Practice

 

A lawyer may communicate the fact that the lawyer does or does not practice in particular fields of law.  A lawyer shall not state or imply that the lawyer is a specialist except as follows:

 

* * * *

 

            (c)            no lawyer shall state or imply that the lawyer is a specialist in any area of law unless the lawyer has been certified by the Arizona Board of Legal Specialization or is certified by a national entity which has standards for certification substantially the same as those established by the board.  Prior to stating that the lawyer is a specialist certified by a national entity, the entity must be recognized by the board as having standards for certification substantially the same was [sic] those established by the board.  If the national entity has not been recognized by the board, it may make application for recognition by completing an application form provided by the board.

 

ER 7.5.            Firm Names and Letterheads

 

            (a)            A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1.  A trade name may not be used by a lawyer in private practice.

 

* * * *

RELEVANT ARIZONA ETHICS OPINIONS

 

Ariz. Op. 97-04

 

OPINION

 

1.         Firm domain name v. Law firm name

 

"Domain names" function as addresses on the Internet.  They identify specific sites on the World Wide Web.  A domain name or URL (Uniform Resource Locator) is comprised of at least three components consisting of the top level domains (.com, .gov, .edu, .net, and .org)[2], a second level domain (or subdomain, which is an alphanumeric name, such as "azbar" or "abanet"), and www for "World Wide Web."  The Department of Commerce, along with several semi-private registration companies, has established protocols for the appropriate and uniform use of the top level domain suffixes.  Dept. of Commerce Guidelines and Protocol on Top Level Domain Names.  .Com identifies a commercial enterprise, .org identifies a non-profit entity, .edu identifies an educational institution, .gov identifies a non-military government entity, and .net is reserved for network providers.  Id.

 

Virtually anyone, in theory, may register the secondary domain name they want with an ICANN-accredited domain name registrar, subject only to federal trademark and copyright laws and unfair competition claims under the Lanham Act.[3]

 

Individuals searching the Internet for a particular service or particular website use search engines to scan websites for particular words or phrases.  websites usually imbed "metatags" within the hypertext of the site that function as key words or phrases that search engines seek out.  Internet travelers also may go directly to a particular website by entering that site's exact URL or domain name into the traveler's browser.  The browser then "pulls up" that site.  A domain name may or may not be searchable as a metatag, but regardless of its use as a search term, domain names function to identify a particular site.

 

Clearly law firms want to choose a domain name that clients will remember easily and that will identify that law firm.  Frequently lawyers include their website addresses on business cards, letterhead, telephone directory advertisements, and other directory listings.  The purpose of the domain name is to function as a professional identifier.

 

While a domain name is not necessarily the same as the law firm name (and sometimes cannot be the firm name due to the length of the actual name), domain names are "professional designations" within the meaning of the Rules of Professional Conduct.  Ethical Rule 7.5(a), as it currently exists in Arizona, states: "A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1."  Therefore, a domain name for a law firm may be different than the actual firm name but the domain name otherwise must comply with the Ethical Rules.

 

Again, ER 7.5 is not limited to "firm names" but also encompasses any "professional designation" used by a lawyer.  Thus, something that functions as a professional designation, including a domain name, must comply with ER 7.1.  Ethical Rule 7.1(a) prohibits lawyers as follows:

 

A lawyer shall not make false or misleading communication about the lawyer or the lawyer's services.  A communication is false or misleading if it: (1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading; (2) is likely to create an unjustified expectation . . .; (3) compares the lawyer's services with any other lawyers' services, unless the comparison can be factually substantiated; (4) is a factual statement which cannot be factually substantiated.

 

Ethical Rule 7.1 is not limited to print media, nor is it limited to just advertisements of lawyer's services.  The Rule applies to all "communications" about a lawyer's services, which includes lawyer websites and domain names.  Additionally, ER 7.1(q) specifically recognizes "electronic media" as one form of communication.  This Committee previously concluded in Ariz. Op. 97-04 that the Rules of Professional Conduct apply to law firm websites, as have several other bar ethics committees across the country.  See, e.g., Iowa Op. 96-1 (1997); Utah Op. 97-10; Cinn. Bar Ass'n Op. 96-97-01; Ill. Op. 96-10 (website functions akin to yellow pages advertisement); Mich. Op. RI-276; N.Y. Op. 709 (website functions as television advertisement and cannot be false, misleading or deceptive, and it cannot use a trade name); Va. Op. A-0110 (1998).

 

By using the domain name to identify the website for the firm, the domain name is a form of communication regarding the lawyer's services and is subject to the requirements set forth in ER 7.1.

 

2.         Use of the designation "countybar.com" to identify a private law firm

 

The Supreme Court of Ohio's Board of Commissioners on Grievances and Discipline recently issued Ethics Opinion 99-4 (June 4, 1999), which specifically addressed law firm domain names.  The Opinion concluded that it is preferable for a firm to use the firm name as the domain name but "it is not improper for an attorney to use other letters, words or numbers provided that the domain name is not a false, fraudulent, misleading, deceptive, self-laudatory, or unfair statement" as prohibited by Ohio's Disciplinary Code.  Nor may a domain name "imply special competence or experience."  Ohio Op. 99-4 at 1. The advice given in the Ohio Opinion is consistent with this Committee's prior Opinion on websites.  Domain names cannot be false, misleading, or deceptive.  In the current inquiry, the inquiring attorney's desire to use the domain name "countybar.com" would erroneously suggest that this private law firm has some special affiliation with the local bar association.  Just because the law office is in that county and the lawyers are members of that bar association does not mean that they, alone, should be able to use a domain name that identifies the firm as the countybar.com.  A law firm domain name that identifies a particular affiliation with a certain organization is misleading under the Ethical Rules if the name suggests that the law firm has a unique affiliation when it does not.  The same prohibition would apply, for instance, if a private law firm wanted to use a domain name of "U.S.SupremeCourt.com" even if a member of the firm was admitted to the U.S. Supreme Court.  Such professional designations imply a special affiliation that is misleading under the Rules of Professional Conduct.

 

Lawyers need to remember that the Rules of Professional Conduct, unlike the Lanham Act, do not require evidence of actual or even potential confusion; they require that lawyers refrain from false, deceptive, or misleading communications.[4]

 

3.         Use of the designation ".org" to identify a private law firm

 

The inquiring attorney alternatively seeks to use a domain name of "arizonalawyer.org."  The use of the suffix ".org" is problematic.  The top level domain ".org" is intended to indicate a non-profit organization.  See Dept. of Commerce Guidelines and Protocol on Top Level Domain Names.  ICANN-accredited domain name registrars follow these protocols in registering domain names in order to maintain uniformity of use.  By identifying a private law firm with the ".org" suffix, the communication creates a false impression that the firm either is a non-profit or is in some way specially affiliated with a non-profit.  Accordingly, the firm should not use a name that includes the top level domain ".org" unless it is in fact a non-profit organization.

 

CONCLUSION

 

A law firm domain name is a communication about a lawyer's services and a "professional designation" and thus must comply with the Rules of Professional Conduct.  However, domain names do not have to be identical to the law firm's actual business name as long as they otherwise comply with the Ethical Rules.  For-profit law firm domain names cannot be false, misleading, deceptive, self-laudatory, or imply special competence or affiliation unless true.  Therefore, private law firms cannot use secondary domain names that imply some exclusive affiliation with a bar association or governmental entity, nor may they use the top level domain suffix ".org" if they are for-profit.

 


 

[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings.  Ó State Bar of Arizona 2001

[2] These are the only top level domain suffixes currently authorized for use, but other top level domain suffixes may become available in the future.  This Opinion is limited to an analysis based upon the current domain suffixes available.

[3] This Opinion will not discuss the legal issues of intellectual property ownership, infringement or unfair competition claims.

[4] This Committee has concluded in prior opinions that use of professional designations or titles that are false, misleading, or deceptive violate the Rules.  See, e.g., Ariz. Op. 90-01 (lawyer's name "and Associates" is false and misleading if there are no full-time associates employed by the firm); Ariz. Op. 87-11 (describing firm as "commercial law and litigation specialty" when there is no such specialization provided by Bar violates ERs 7.4 and 7.5).