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When Amy Osteen launched her virtual law firm April 2 in Plano, Texas, she thought she had picked out the perfect name—Outside CLO—to refer to the chief legal officer work she would be doing for her clients.

Amy Osteen, Outside CLO, Plano. (Courtesy photo)

But Osteen, most recently chief legal officer of Rug Doctor, said she was surprised and disappointed to receive a letter from the State Bar of Texas Advertising Review Board last week, notifying her that it considers Outside CLO to be a trade name, which is not permitted in Texas under current ethics rules.

Osteen asserts the name is precisely descriptive of what she does, and should be allowed. She is hopeful the State Bar will not force her to change the name of her month-old firm, considering the State Bar of Texas Board of Directors is currently considering a proposal that would could open a door for law firms to operate under trade names.

Osteen, who was an in-house lawyer for 17 years, said Outside CLO is more descriptive of her duties than calling her virtual solo practice by her own name. And it helps her market her services.

Marketing professionals who advise law firms agreed. They said trade names can be very useful for firms with consumer or niche practices, such as Osteen's, but they would not necessarily benefit full-service firms. Allowing trade names could shake up the Texas legal market as some firms adopt trade names and move away from names composed of surnames of current or former partners.

"For niche practices, there's an absolute advantage," said Gina Rubel, founder and CEO of Furia Rubel Communications, based in the Philadelphia area.

Rubel noted that it is "not an easy process" to find a unique trade name that can be trademarked. But, she said, it can be beneficial for firms that have a limited practice or that serve a particular industry.

"If you have an organization that works specifically with the oil industry and that's all you do, having The Oil Lawyer works," she said.

A trade name, rather than a list of senior partners' names, can help the culture of the firm as well, said Jill Huse, a partner in Society 54 in Charlotte, North Carolina, who is president of the Legal Marketing Association. Huse explained that a trade name might generate loyalty among partners, or "a little more ownership to the people in your firm, not just the founding partners."

"It's an interesting concept," she said.

And, Huse added, the traditional use of partner names in a firm moniker can actually be somewhat confusing—for instance, when distinguishing among the numerous Big Law firms with "Baker" in the name, such as Baker & Hostetler; Baker McKenzie; Baker Botts; and Baker, Donelson, Bearman, Caldwell & Berkowitz.

William J. Flannery, founder of WFJ Institute in Austin, agreed that a trade name can create a market presence for specialty firms, such as boutiques focused on intellectual property, criminal defense or estate planning. But, he said, it would not work as well for firms with a diverse practice offering.

For example, "I can't see Shearman & Sterling going to Wall Street Mavens," he said.

Complications in 'A Simple Name'

The use of trade names has been an issue nationally for a while, but it came to a head in Texas in January, when Utah firm LawHQ filed lawsuits against Texas and eight other states, alleging that wholesale prohibitions on the use of trade names for law firms is unconstitutional and should be abolished.

Thomas Alvord, principal of LawHQ in Salt Lake City, Utah. (Courtesy photo)

The suit, filed in the U.S. District Court for the Western District of Texas, is on hold. On March 20, U.S. District Judge Robert Pitman granted a joint motion putting the litigation in abeyance because Texas is considering a rule amendment that would make the lawsuit moot.

Rebecca Evans, general counsel of LawHQ, said that name has been effective in marketing the virtual firm because about 90% of its work right now is representing consumers seeking damages for spam robocalls.

"It's a simple name that's easy to recognize, easy to remember, easy to get into an app or a trademark. It's very descriptive," she said.

On May 8, the State Bar of Texas Committee on Disciplinary Rules and Referenda approved a revision of Rule 7.01(c) of the Texas Disciplinary Rules of Professional Conduct that explicitly allows firms to use trade names. It is now before the bar's board, with the potential for a vote next year.

Meanwhile, Osteen, the Plano lawyer with Outside CLO, said she will respond to the Bar's Advertising Review Committee by asserting that she does not believe her firm name is misleading or a trade name. At any rate, she would like to ask for a stay on the review of the name until after Texas lawyers vote on the trade name proposal.

Using her niche name, Osteen said she's gotten an "amazing response" to the launch of Outside CLO, even amid the coronavirus pandemic, which has also thrust on her the responsibility for schooling her children remotely. As she launched the practice, she has been meeting new clients and representing small businesses that need a lot of help right now, as well as doing some pro bono work.

So the timing of the bar's advertising review is not opportune, Osteen said.

"There's a lot going on in the world right now. Does this really [need to] lead to the level of taking away someone's livelihood?" Osteen asked.

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