Tuesday, January 17, 2012
This reverses an earlier Arizona state bar ethics panel decision (Arizona Ethics Op. 01-05 (2001)) that had found the use of the suffix ".org" by for-profit law firms would mislead consumers. This most recent opinion, (Arizona State Bar Committee on Rules of Professional Conduct, Op. 11-04), finds that the ".org" suffix is now more widely used by for-profits such that consumers of legal services will no longer be misled. An excerpt from the opinion:
As we indicated in Ariz. Ethics Op. 01-05, a law firm’s website address is the mechanism by which the law firm’s website is located by persons using the Internet. The website address frequently differs from the law firm name. The website address is typically used on business cards, letterhead, telephone directories, and other listings so that actual and potential clients and others will be able to identify and remember the firm easily. Since the website address is intended to identify the law firm, it is a “professional designation” within the meaning of ER 7.5, and its selection and use is therefore subject to the requirements of ER 7.1. Thus, while the website address need not be the same as the law firm name, it cannot be false or misleading. For example, the website address may not state or imply that the law firm has qualifications, competence, or experience that it does not, or that the law firm has an affiliation or relationship with another organization unless that affiliation or relationship actually exists.
The website address contains a suffix (.com, .gov, .edu, .net, .org, etc.) that identifies the domain in which the website is located. Opinion 01-05 relied on U.S. Department of Commerce guidelines that identified “.org” as pertaining to a non-profit entity. On that basis, the Committee concluded that a for-profit law firm’s use of “.org” as a suffix “creates a false impression that the firm either is non-profit or is in some way specially affiliated with a non-profit,” and was not permitted under the Ethical Rules.
Since 2001, use of Internet domain names, including those with the suffix “.org,” has skyrocketed. Of particular significance here, notwithstanding the “guidelines” in the Department of Commerce document relied on in Op. 01-05, the use of an “.org” suffix for Internet domain names has not been restricted to “non-profit” entities. To the contrary, anyone may register a website address that contains the suffix “.org,” and the person registering the address is not required to demonstrate that the website is or will be owned or used by a non-profit entity.
Moreover, in light of the widespread use of the “.org” suffix by for-profit organizations in the years since Ariz. Ethics Op. 01-05 was issued, the possibility that the public will be misled by a for-profit law firm’s use of “.org’ in its website address is remote. “Whether a communication about a lawyer or legal services is false or misleading is based upon the perception of a reasonable person.” ER 7.1 [comment 5] (emphasis added). A reasonable person, desiring to verify whether an entity is non-profit, would not rely solely on the entity’s website address.
In light of the foregoing, the Committee does not believe that the mere use of “.org” by a for-profit law firm is a violation of the Arizona Rules of Professional Conduct. Opinion 01-05 is modified accordingly.
Except to the extent modified by this opinion, the Committee believes that Ariz. Ethics Op. 01-05 is correct. Thus, a lawyer or a law firm may not use a domain name that falsely implies that the lawyer or the law firm is affiliated with a particular non-profit organization or with a governmental entity or which otherwise is false or misleading.
Hat tip to the BNA/Bloomberg The United States Law Week (subscription required).