In Re the Petition for Certificate of Authorization for Corporate Name—Oldtowne Legal Clinic, P.A.

Murphy, C. J., delivered the opinion of the Court. Kaplan & Kaplan, P.A. (Kaplan), a professional service corporation licensed to practice law in Maryland, filed a petition with this Court to use “Oldtowne Legal Clinic, P.A.” as the corporate name of a separate professional association which it proposes to establish under the Maryland Professional Service Corporation Act, Maryland Code (1975), §§ 5-101 through 5-122 of the Corporations and Associations Article. The primary question before us is whether the proposed name may be used in view of the provisions of DR 2-102 (A) of the Code of Professional Responsibility, which ¹³⁴ prohibit a lawyer from practicing law under a trade name; 1 and, if DR 2-102 (A) inhibits such usage, whether the rule violates the free speech provisions of the first amendment to the federal constitution and of Article 40 of the Maryland Declaration of Rights.

(1) Section 5-101 (d) of the Professional Service Corporation Act (the Act) defines a professional corporation as one which is organized to perform a professional service and has, as stockholders, only individuals licensed in Maryland to perform the same professional service as the corporation. Section 5-102 of the Act authorizes one or more individuals licensed to perform the same professional service in Maryland to organize and become stockholders of a professional corporation. Section 5-105 prohibits a professional corporation from performing any professional services except through employees or agents who are licensed to perform the professional service. Section 5-109 (a) provides that the corporate name of a professional corporation shall contain the words “chartered,” “professional association” or the abbreviation “P.A.” Section 5-109 (b) prohibits a professional corporation from using, as part of its corporate name, any word or abbreviation for “company,” “corporation,” “incorporated,” or any other term which indicates that it is a corporation.

Section 5-110 requires that the corporate name of a professional corporation include the surname of one or more stockholders unless, inter alia: “(1) The corporation has or when incorporated will have at least four stockholders; ¹³⁵ (2) The name of the corporation is approved by the appropriate licensing unit as a name which is in accordance with the established ethical standards, rules, and regulations of the profession; (3) A certificate of authorization for use of corporate name is issued by the appropriate licensing unit to the corporation or to its incorporator.” Section 5-111 provides that to obtain a certificate of authority for a corporate name, a professional service corporation must file an application “with the appropriate licensing unit” which is defined in § 5-101 (c) to mean “the board, agency, or other entity which licenses or otherwise legally authorizes the performance of a professional service.” Section 5-111 (c) requires the “licensing unit” to consult with and obtain approval of the statewide professional organization to which the majority of individuals in the' State performing the same professional service belong. Section 5-111 (d) provides that if the licensing unit and professional organization approve of the proposed corporate name, the licensing unit shall issue a certificate of authorization. In its petition to use “Oldtowne Legal Clinic, P.A.” as a corporate name, Kaplan states that the clinic will service the residents of the historic area of Baltimore City known as Oldtowne; that it will be staffed with “a minimum of one paralegal at all times”; that Kaplan will “finance” the clinic and its “skill, experience and expertise ... will be available to the clinic when needed”; and that the proposed professional association will have a minimum of four stockholders. The Court, as the licensing unit contemplated by § 5-111 of the Act in connection with professional associations of lawyers, requested the Maryland State Bar Association to consider Kaplan’s petition and to file a brief amicus curiae addressing the issues in the case.

(2) Kaplan contends, in support of its petition, that commercial speech is entitled to all the protection that is afforded to other ¹³⁶ forms of speech. As a consequence, it argues that since the proposed name is a form of advertisement, and is not inherently deceptive, the restriction contained in DR 2-102 (A) against lawyers practicing under trade names interferes with the free flow of commercial information and thus violates the federal and state constitutions. Kaplan relies primarily upon Bates v. State Bar of Arizona, 433 U. S. 350 , 97 S. Ct. 2691 , 53 L.Ed.2d 810 (1977), and Va. Pharmacy Bd. v. Va.

Consumer Council, 425 U. S. 748 , 96 S. Ct. 1817 , 48 L.Ed.2d 346 (1976). The Bar Association asserts that since a trade name communicates no information to the public about legal services, but merely serves to identify the seller of services, it is not protected commercial speech under the rationale of Bates and Virginia Pharmacy. It notes that Kaplan has failed to show what, if any, important information is conveyed to the public through the use of trade names. Moreover, the Bar Association relies upon Ohralik v. Ohio State Bar Assn., 436 U. S. 447 , 98 S. Ct. 1912 , 56 L.Ed.2d 444 (1978), as additional authority supportive of the constitutionality of DR 2-102 (A)’s ban on the private practice of law under a trade name.

That case held that a lawyer’s in-person solicitation of an accident victim was subject to the attorney disciplinary process, notwithstanding the fact that “speech” was involved in the solicitation. The Supreme Court there observed that states retain the power to regulate the professions and that the lawyer’s conduct in making the in-person solicitation was only marginally affected with first amendment concerns. (3) A trade name is “any designation which is adopted and used by a person to denominate goods which he markets, or services which he renders, or a business which he conducts, or has come to be so used by others, and through its association with such goods, services, or business, has acquired a special significance as the name thereof.” Edmondson Vil. Theatre v. Einbinder, 208 Md. 38, 45 , 116 A. 2d 377 (1955).

In its most common usage, a trade name is a name, word, or phrase employed by one engaged in business, ¹³⁷ as a means of identifying his products, business, or services; it may be used to indicate a part or all of a firm name or corporate name, or an abbreviation thereof. 74 Am. Jur. 2d Trademarks and Tradenames § 2 (1974). Trade names may include “descriptive, geographical, or personal name notations or symbols which in themselves do not necessarily identify a source ... [but which] may acquire a secondary meaning in the market as indicating a singleness of source.” J. Calimafde, Trademarks and Unfair Competition 532 (1970). Thus, in Edmondson Vil.

Theatre , our predecessors observed that while a geographical, locational or place name is common property which ordinarily cannot be appropriated as the subject of an exclusive trade name, if the name acquires a secondary meaning, i.e., comes to signify not only a place but also the producer of a product or service, the owner may assert an exclusive right to it as a trade name. 208 Md. at 46-47 . The Canons of Professional Ethics (originally adopted by the American Bar Association in 1908 and by the Maryland State Bar Association in 1948) have, since 1928, proscribed the use of trade names by lawyers. See Lusby v. Nethken, 262 Md. 584 , 278 A. 2d 552 (1971); American Etc. Comm. v. Eisenberg, 194 Md. 193 , 70 A. 2d 40 (1949); H. Drinker, Legal Ethics 206 (1953); R. Wise, Legal Ethics 200 (1970).

As amended in 1937, Canon 33 provided that in the selection of a firm name, “no false, misleading, assumed, or trade name should be used.” Formal Opinion No. 318 (1967) of the Ethics Committee of the American Bar Association stated that the use of a trade name by a lawyer was per se unethical. This ruling was consistent with earlier unpublished opinions of the ABA Ethics Committee that “Household Associates,” “McCarrus Claim Service” and “Northern Law Clinic” were trade names which lawyers were prohibited from using in their law practices. A.B.A. Comm, on Professional Ethics, Informal Opinions, Nos. 374-376. The ABA adopted the present Code of Professional Responsibility in 1969; it contained the same prohibition against the use of trade names by lawyers.

The Maryland State Bar Association adopted the Code on July 9, 1970, and ¹³⁸ we, by Maryland Rule 1230, adopted the Code effective November 2, 1970. 2 The Disciplinary Rules contained in the Code represent the mandatory, minimum level of conduct required of members of the bar. Andresen v. Bar Ass’n of Mont. Co., 269 Md. 313 , 305 A. 2d 845 , cert. denied, 414 U. S. 1065 (1973). Accordingly, we have heretofore disapproved the use of such proposed corporate trade names as “Legal Clinics of Maryland, Limited,” “Carroll County Legal Clinic, P.A.,” “The Consumer Law Center of Jacob J. Shapiro, P.A.,” and “Legal Clinics of America, Ltd.” 3 We think the proposed name “Oldtowne Legal Clinic, P.A.” is a trade name intended by Kaplan to designate the particular legal clinic which it plans to sponsor, finance, and operate in Oldtowne. 4 Since usage of the name violates DR 2-102(A), it conflicts “with the established ethical standards, rules, and regulations of