February 13, 2014
Ethical Obligations Regarding the Use and Handling of a Law Firm’s Domain Name upon a Partner Departure and Change In the Firm’s Name
An interesting ethics issue is being considered by the Virginia State Bar with respect to whether and how a firm can continue to use its URL after a partner departure when the URL contained the former partner’s name in it and the firm’s name has changed. At present, the Virginia State Bar Standing Committee on Ethics has issued a proposed Advisory Opinion on this issue, but is still seeking comment on this topic through February 28, 2014. (See Virginia State Bar Proposed Legal Ethics Opinion No. 1873.) While this proposed opinion does not originate in California, it will be instructive on handling similar issues that arise in California, given that the ethical rules that are the underpinnings of this proposed opinion are substantially similar to those in California.
This proposed opinion addresses a hypothetical situation in which two partners, Smith and Jones, practiced together at a law firm entitled Smith & Jones, P.C. that used the URL “smithjones.com.” After one partner departs from the firm and joins another firm (Smith), the remaining partner (Jones) changes the firm name to the Jones Law Offices and establishes a new website for his new firm, “joneslawoffices.com.” Jones wants to automatically redirect anyone who attempts to access smithjones.com to his new website, or to put a notice on the smithjones.com website that it no longer exists and has now become the Jones Law Offices. The proposed ethics opinion addresses the issues of whether this URL redirection is proper, and whether the proposed notice on the website is permissible.
The proposed opinion starts by emphasizing that a law firm name cannot include the departing partner’s name in it once that partner has joined another firm. Such continued use of the former firm name would amount to a false or misleading communication by the firm and its attorneys in violation of Virginia Rules of Professional Conduct. The proposed opinion cites to the Virginia Rules of Professional Conduct, Rules 7.1 and 7.5, which are very similar to the California Rules of Professional Conduct, Rule 1-400, on this subject. Specifically, in California, a “Communication” is defined by Rule 1-400 as (1) Any use of firm name, trade name, fictitious name, or other professional designation of such member or law firm; or (2) Any stationery, letterhead, business card, sign, brochure, or other comparable written material describing such member, law firm, or lawyers.” Rule 1-400(A)(1) & (2). Rule 1-400(D) states that any such “Communication” shall not contain any matter which is “false, deceptive, or which tends to confuse, deceive, or mislead the public.” California Rules of Professional Conduct, Rule 1-400 (D).
The proposed opinion emphasizes, however, that the firm does not have to immediately abandon or change the domain name just because a partner has departed and the firm’s name has changed. It notes that the firm’s URL name does have value to the general public, including former and potential clients who are searching for the firm and its attorneys by way of the former firm name. Thus, while the URL cannot mislead the public regarding the status of the former firm and its partners, it can and should be used to communicate with the public about changes in a law firm and its partners.
For example, the proposed opinion states that it would be misleading and inappropriate for Jones to simply redirect the traffic from “smithjones.com” to his new firm website at “joneslawoffice.com” or to post only that Smith & Jones no longer exists and that the firm has now become Jones Law Offices. Any such website redirection or posting without an explanation that the law firm has changed name and composition could mislead former and potential clients into believing that Smith is no longer practicing law, or is otherwise unavailable to assist former clients or take on new ones. The Committee opined that such redirection without explanation would violate the fundamental principle that all clients are entitled to use the lawyer of their choice, and that Jones may not impede that choice by refusing to provide accurate information about the change in name and the composition of the firm. The State Bar of California Committee on Professional Responsibility and Conduct has also emphasized that client choice of counsel is of paramount importance. [State Bar of California, Committee on Professional Responsibility and Conduct, Formal Opinion 1985-86.]
Interestingly, the proposed opinion suggests that even if Jones had the legal right to control the “smithjones.com” domain name pursuant to a written partnership agreement or relevant law, Jones would still be required to abide by the foregoing ethical guidelines. While it is uncertain whether the proposed opinion will be finalized in its current form, the issue presents yet another example of how important it is to stay abreast of current and potential ethical obligations when considering departing your existing firm, or if you are dealing with a recent partner departure.