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In the Matter of the Letter Decision of the Committee On Attorney

March 14, 2013

IN THE MATTER OF THE LETTER DECISION OF THE COMMITTEE ON ATTORNEY ADVERTISING, DOCKET NO. 47-2007


On petition for review of a decision of the Supreme Court Committee on Attorney Advertising.

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interest of brevity, portions of any opinion may not have been summarized.)

In the Matter of the Letter Decision of the Committee on Attorney Advertising,

Docket No. 47-2007 (A-14-08) (062134)

Argued December 2, 2008-Remanded February 26, 2009-Reargued January 4, 2011-Reargued October 10, 2012-Decided March 14, 2013

LaVECCHIA, J., writing for a unanimous Court.

The issues in this appeal are whether use of the trade name Alpha Center for Divorce Mediation, P.C. (the Center), which consists of lawyers and supportive personnel engaged in divorce mediation services, violates RPC

7.5; whether the policy on law firm names in New Jersey should be broadened by amending RPC 7.5 to permit trade names within certain limits; and whether the Center's trade name is consistent with the current or proposed rules.

In 2007, in response to an anonymous inquiry, the Advisory Committee on Professional Ethics issued Advisory Opinion 711, concluding that "Center for Divorce Mediation, P.C." is not a permissible law firm trade name under RPC 7.5. The Center sought review from the Committee on Attorney Advertising (CAA) on the use of its name "in conjunction with the name of the attorney principally responsible for the office." The Center argued that the restriction on its trade name violated the First Amendment of the United States Constitution. In a letter dated November 28, 2007, the CAA advised the Center that the use of its trade name, even accompanied by an attorney's name, was not permitted. The CAA stated that the words "Center for Divorce Mediation" describe the nature of the practice; and "Alpha," as the first letter of the Greek alphabet, may be interpreted to mean that it is the "first center for divorce mediation." The CAA determined that because neither described the lawyers in the firm, they are not permissible "additional language" under RPC 7.5(e); "Alpha" may be viewed as improperly comparative under RPC

7.1(a)(3). The CAA further opined that adding the managing attorney's name does not cure the problem. The Court granted the Center's petition for review. 195 N.J. 514 (2008).

After hearing oral argument, the Court remanded the matter to the CAA for recommendations on additional information the Court should permit in law firm names. The CAA filed a report in June 2010, concluding the rules should remain the same and "the name or names of an attorney with a law firm should remain as the sole official designation of a New Jersey law firm." The Court entertained oral argument and thereafter issued a Notice to the Bar in April 2011, seeking comments on proposed changes to RPC 7.5. As proposed, the amendment would allow use of a trade name "so long as it describes the nature of the firm's legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, unprofessional, or suggestive of the ability to obtain results. Such trade names should be accompanied by the name of the attorney who is responsible for the management of the organization." The Court also proposed an official comment to illustrate the rule: "By way of example, 'Millburn Tax Law Associates, John Smith, Esq.' would be permissible under the trade name provision of this rule . . . . However, neither 'Best Tax Lawyers' nor 'Tax Fixers' would be permissible, the former being comparative and the latter being unprofessional." The Court invited the State Bar Association to participate as amicus curiae. After receiving public comments, the Court again heard oral argument. This opinion followed.

HELD: RPC 7.5 is amended to permit a law firm trade name so long as it describes the nature of the legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. The name must be accompanied by the name of the attorney responsible for the management of the organization. The term "Alpha" in the Center's name is impermissible under revised RPC 7.5 and current RPC 7.1. The remainder of the name, coupled with the name of a managing New Jersey attorney, satisfies revised RPC 7.5.

1. Current RPC 7.5 requires firm names to "include the full or last names of one or more of the lawyers in the firm or office"; permits "additional identifying language" "only when such language is accurate and descriptive of the firm"; and requires that "the name or names of one or more of its principally responsible attorneys, licensed to practice in this State, shall be displayed on all letterheads, signs, advertisements and cards or other places." RPC 7.1 also applies and states: "(a) A lawyer shall not make false or misleading communications about the lawyer, the lawyer's services, or any matter in which the lawyer has or seeks a professional involvement. 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" or "(3) compares the lawyer's services with other lawyers' services." The Center argues that RPC 7.5 is unconstitutional under the First Amendment and lacks synchronicity with the trend in most other states to allow trade name use. The State Bar Association and the CAA counter that RPC 7.5 is constitutional and no change is necessary. (pp. 8-12)

2. In Central Hudson Gas & Elec. Corp. v. Pub. Serv. Comm'n, 447 U.S. 557 (1980), the United States Supreme Court established a four-part analysis for courts to apply in commercial speech cases under the First Amendment:

(1) whether the expression is protected by the First Amendment, that is, whether the speech concerns lawful activity and is not misleading; (2) whether the asserted governmental interest is substantial; (3) whether the regulation directly advances the asserted interest; and (4) whether the regulation is not more extensive than is necessary to serve that interest. Two United States Courts of Appeals have addressed whether attorney-advertising regulations can survive scrutiny under the Central Hudson test, reaching opposite results. In Alexander v. Cahill, 598 F.3d 79 (2d Cir. 2010), the Second Circuit concluded that a prohibition on "trade names or nicknames that imply an ability to get results" was unconstitutional because the evidence relied upon did not support the regulation, and a blanket ban on trade names was more restrictive than necessary to address any potentially misleading commercial speech. In Public Citizen, Inc. v. Louisiana Attorney Disciplinary Board, 632 F.3d 212 (5th Cir. 2011), the Fifth Circuit reviewed rules that prohibited "a nickname, moniker, motto or trade name that states or implies an ability to obtain results in a matter." The Fifth Circuit held that Louisiana had asserted two substantial governmental interests for its rules: "protecting the public from unethical and potentially misleading lawyer advertising and preserving the ethical integrity of the legal profession." The court determined that studies conducted by Louisiana's Rules of Professional Conduct Committee provided sufficient reliable evidence to uphold the trade name regulation. The court found it critical that the regulation only prohibited "those mottos or nicknames that state or imply an ability to obtain results." Thus, the Fifth Circuit concluded that the rule was "narrowly drawn to materially advance the substantial government interest in protecting the public from misleading lawyer advertising." (pp. 12-16)

3. Most states now allow use of trade names by law firms without any report of adverse impact to the public. The Court also recognizes the changing and multijurisdictional nature of the legal profession. As a matter of policy and without any need to reach the First Amendment issue under current RPC 7.5, the Court amends RPC 7.5 in recognition that use of trade names can be incorporated in the profession without harm to the public. The new rule provides a balance, permitting use of a trade name-but only when accompanied by an attorney's name-and imposing additional limitations on the descriptive language. A trade name may not be misleading or contain inherently superlative or comparative language. The express prohibitions in revised RPC 7.5 are consistent with RPC 7.1's restrictions on communications concerning a lawyer's service. Together, the rules promote our intent to instill public confidence in the professionalism of attorneys and the dignity entailed in the practice of law in New Jersey. Accordingly, the Court amends RPC 7.5(e) to permit use of a law firm trade name "so long as it describes the nature of the firm's legal practice in terms that are accurate, descriptive, and informative, but not misleading, comparative, or suggestive of the ability to obtain results. Such trade names shall be accompanied by the name of the attorney who is responsible for the management of the organization." (pp. 17-21)

4. A committee will be established to address implementation of amended RPC 7.5. (pp. 21-23)

5. Under new RPC 7.5, the Center's use of the term "Alpha" adds no informative content and is confusing and invokes the notion of primacy. It is impermissible under the standards animating revised RPC 7.5 and current RPC

7.1. The rest of the name, with the name of a managing New Jersey attorney, satisfies revised RPC 7.5. (pp. 23-25).

The advisory opinion issued by the Committee on Attorney Advertising is AFFIRMED AS MODIFIED.

CHIEF JUSTICE RABNER; JUSTICES ALBIN, HOENS, and PATTERSON; and JUDGES RODRIGUEZ and CUFF (both temporarily assigned) join in JUSTICE LaVECCHIA's opinion.

062134

Argued December 2, 2008 -- Remanded February 26, 2009 -- Reargued January 4, 2011 -- Reargued October 10, 2012 --

JUSTICE LaVECCHIA JUSTICE LaVECCHIA delivered the opinion of the Court. This appeal concerns Rule of Professional Conduct (RPC) 7.5, which governs law firm names in New Jersey, and Alpha Center for Divorce Mediation, P.C. (the Center), an entity that operates in multiple states and consists of lawyers and supportive personnel engaged in divorce mediation services. The Center began operating in New Jersey under the trade name that it uses in other jurisdictions, and an issue arose over whether the Center's use of its trade name in New Jersey violated RPC

7.5. Ultimately, the Committee on Attorney Advertising (CAA), which opines on such questions in the context of attorney advertising, see R. 1:19A-2(a) (granting CAA exclusive jurisdiction to issue advisory opinions on attorney advertising compliance with RPC 7.5), determined that the Center's name violated RPC 7.5, and we granted the Center's petition for review of that advisory opinion. See R. 1:19A-3(d).

In the course of our review, we undertook a re-examination of RPC 7.5 in light of the widespread acceptance of the use of trade names by law firms around the country. As a result of that review, we proposed for comment an amended version of RPC

7.5. After receiving few comments on the proposal, we set this matter down for reargument and requested the participation of the New Jersey State Bar Association (the State Bar Association). Having heard argument and having considered the comments we received on the proposal to amend RPC 7.5, we now conclude that our policy on law firm trade names should be broadened to allow use of trade names within certain limits.

With this opinion, we adopt the proposed changes, with minor revisions, and order the steps to be taken to implement the amended RPC 7.5. To assist with the details of implementing the amendment, there shall be established a committee comprised of a broad array of attorneys, as well as other parties having an interest in promoting the public's need for trade name use to be informative and non-deceptive. A separate order establishing the committee and identifying its assigned agenda will issue following this decision. We also complete our review of the appropriateness of the trade name, Alpha Center for Dispute Resolution, using the revised RPC 7.5.

I.

Review of the legality of the Center's trade name began in the context of an advisory opinion issued by the Advisory Committee on Professional Ethics (ACPE). See R. 1:19-1 to -9 (granting ACPE with general authority to accept inquiries concerning proper conduct by members of legal profession under RPCs, with certain subject matter exclusions). Advisory Opinion 711, which was published on July 23, 2007, addressed the concerns of an anonymous inquirer who asked whether the Center was operating within the bounds of the New Jersey Rules of Professional Conduct (the RPCs). While Opinion 711 covered a number of different ethical considerations, it ultimately concluded that "'_____ Center for Divorce Mediation, P.C.,' run by a lawyer and involving other 'affiliated' lawyers, is not a permissible trade name under RPC 7.5."*fn1

The Center, understandably concerned about Opinion 711's impact, sought review of its trade name question from the CAA. The Center indicated that its "trade name would be used in conjunction with the name of the attorney principally responsible for the office." It also argued that the restriction on ...


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