Diversity, pro bono and access oh my.
By now you have heard something about the lawsuit against the State Bar that was filed by a trio of attorneys who do not want to be compelled to subsidize activities the Bar’s “‘diversity’ initiatives, its legislative program, and its advocacy of pro bono and ‘access to justice’ programs.”
They are also challenging the legality of a mandatory bar.
Not to be left out, Attorney General Ken Paxton filed an amicus brief in support of the Plaintiffs’ MSJ on liability—a brief in which he asked a federal judge to put a halt to the state bar’s “current practice of forcing all licensed Texas attorneys to fund a host of ideological and political activities through mandatory membership dues.”
The State Bar Executive Director has responded in the most recent Bar Journal and vows to defend against the attack. Summary Judgment Motions are pending, with the State Bar having just filed its own Cross-Motion for Summary Judgment.
While this challenge to the bar plays itself out in the courts, and regardless of where you fall in this clearly partisan game, it never hurts to remember that having a license to practice law in which the state grants you a special privilege not available to other people comes with obligations back to the public and those less fortunate.
Who’s Afraid of Trade Names?
One of the most hotly debated proposed disciplinary rule changes in the past months called for eliminating the prohibition in Rule 7.01(a) against the use of trade names for lawyers. This was part of a proposed and much needed overhaul of the lawyer advertising rules. On its surface the change seemed to fill an obvious need; Texas is only one of a handful of states that does not allow lawyers and law firms to use trade names, requiring instead that lawyers practice under the names of current, deceased or retired firm members.
Nonetheless, it seems that members of the Bar were generally opposed to the trade name change, and as a result the proposed revisions to the ad rules have now been withdrawn and are being re-worked. The new proposed revision will be published for comment on June 1, 2019 in the Texas Bar Journal, with public hearings to follow in June and July and will presumably not change the existing prohibition against trade names.
In the meantime, many Texas lawyers may find the prohibition has little practical effect. The use of domain names that look just like a trade name is not prohibited, for example, www.themalpracticedefensefirm.com would be perfectly acceptable as a descriptive URL or nickname—just not as the name under which the lawyer or firm does business. Slogans and logos are also allowed – the Carwreck Cowboy and the Texas Hammer won’t get in trouble unless they fail to include their real firm names in advertising materials. Under these circumstances an actual change in the name of a firm seems superfluous.
However, if you want to anticipate the possible future and think about practicing under a trade name, or just up your advertising game by adding a descriptive URL or nickname, you should ask yourself a few questions:
- Is the name you want available and not currently used by someone else? You don’t want to invest in a name that leads to a trademark dispute.
- If the name is available can it receive trademark protection? Trade names have value because they are exclusive, and a trade name that cannot be trademarked may have not real value.
- Is the name or something like it available as a domain name? Law firm marketing is internet marketing.
- Is the name deceptive or misleading? No matter how the new rules come out on using trade names they are certain to always prohibit names that would violate other advertising rules by suggesting unique expertise or qualifications that cannot be verified or misleading the public about the attorneys’ affiliation with other groups.
We will see in a week what the Committee on Disciplinary Rules and Referenda has come up with. For now, the existing advertising rules seem to leave plenty of room for creative lawyers to use trade-name-like slogans and nicknames in their advertising and promotions.
Texas Legislature Hopes to Reign in Anti-SLAPP!
While you are considering how you want to come down on the suit against the Bar and what names/phrases you want to trademark, you should keep an eye on the bill that has just passed the Texas House and Senate that would narrow the Anti-SLAPP law (a.k.a. the Texas Citizens Participation Act) to, in part, exclude attorney discipline cases. The current text of the bill is here.
The attempt to remove disciplinary matters from the reach of Anti-SLAPP is likely in response to an ongoing case in Travis County where the respondent attorney successfully used the law to have the grievance against him dismissed by the district court. For more details on this see my partner’s recent blog on this topic at www.accessdefense.com.
That case is on appeal and while Texas courts have applied Anti-SLAPP to an increasingly broad set of circumstances—it is hard to believe that it was ever intended to apply to disciplinary proceedings. The most obvious reasons are (1) the default method of deciding disciplinary complaints is not a suit in District Court, but an evidentiary hearing that is simply not within the scope of Anti-SLAPP law at all, and (2) the law itself (Section 27.010(b)) exempts proceedings against sellers of goods or services (which lawyers are) arising out of conduct in which the intended audience is an actual or potential consumer. This would cover the majority of disciplinary proceedings.
Given this, it is unlikely that the legislature ever intended the dismissal tool to apply to any disciplinary proceeding. Stay on top of the bill’s progress here.
 Currently, Washington, Oregon, Nevada, Texas, Wisconsin and Oklahoma have litigation pending that challenges the legality of a mandatory bar association.
 Lawyers are different; our Texas disciplinary rules set out some of the ways that we have different responsibilities, including: (1) a moral obligation to provide free legal services to those unable to pay reasonable fees; (2) a special responsibility to maintain the quality of justice for everyone; and (3) the duty to each aid the legal profession in pursuing these objectives and help the bar regulate itself in the public interest.
 That domain name is available it appears. But just make sure that you don’t mislead the public—i.e. by adding the word “best” in front of it. See the Ad Rules Interpretive Comments relating to firm names, comments 17(i) and 28
 One of the State Bar’s complaints in the much commented on Oscar Rosales case was that his trade name suggested a non-existent connection to the Veteran’s Administration.