LEGAL ETHICS OPINION 1704 LAW FIRM NAME; USE OF DECEASED
PARTNERS' NAMES; USE OF PARTNERS'
NAMES WHEN THOSE PARTNERS ARE NOW
WITH OTHER FIRMS
You have presented a hypothetical situation involving the
dissolution of a law firm. Law firm "ABC" operated for about 50
years as a partnership with successive changes of partners and
names, but always including A and B first in the name. In 1993,
the partnership converted to a professional limited liability
company, operating under the name of ABC, L.C. As of January 1,
1997, the firm began a process of dissolution.
Attorneys C and E from the dissolved firm are continuing to use
the original firm name (ABC, L.C.) while occupying the same
office suite and using the same telephone numbers, addresses,
facsimile numbers, etc. Attorneys C and E are also practicing
law under a new firm name, ABC & E, P.L.C., using the same
offices as the original firm. Both firm names use the names of A
and B, who are deceased members of the original firm.
Under the facts you have presented, you have asked the committee
to opine as to the propriety of C and E continuing to practice
under two firm names, and whether their use of the deceased
members' names is ethical.
The appropriate and controlling disciplinary rules relative to
your inquiry are DRs 2-102(A) and (C). Also pertinent are
Ethical Considerations 2-13 and 2-15.
DR 2-102(A) states:
A lawyer or law firm may use or participate in the use
of a professional card, professional announcement card,
office sign, letterheads, telephone directory listing,
law list, legal directory listing, or a similar
professional notice or device unless it includes a
statement or claim that is false, fraudulent,
misleading, or deceptive
DR 2-102(C) states:
A lawyer shall not hold himself out as having a
partnership with one or more other lawyers unless they
are in fact partners.
EC 2-13 admonishes lawyers to avoid the use of a name which could
mislead laypersons concerning the identity, responsibility and
status of those practicing under that law firm name. It further
states that it is not improper, if the firm is a bona fide
successor, to use one or more names of deceased or retired
partners. The Ethical Consideration presumes, of course, that
the use of such deceased or retired partner's name is authorized
by law or under contract. As another authority has noted:
The name of a law firm does not necessarily identify
the individual members of the firm, and hence the
continued use of a firm name after the death of one or
more partners is not a deception and is permissible. .
. . The continued use of a deceased partner's name in
the firm title is not affected by the fact that another
partner withdraws from the firm and his name is
dropped, or the name of a new partner is added to the
firm name.
New York State Ethics Opinion 45 (1967). In the materials
provided to the committee, C claims he is the only principal in
the former law firm that has permission to use the names of the
two deceased partners. Whether this is in fact the case is a
legal issue beyond the purview of the committee. The committee
assumes that attorneys C and E are bona fide successors of the
old firm of ABC, L.C., and have a legal and/or contractual right
to continue to practice under a successor entity using the names
of the deceased partners, A and B.
The committee has previously opined that as long as the use of
the firm's name is not misleading or deceptive to the general
public, and assuming such name is authorized by law or contract,
it is ethical to maintain the use of such a firm name even though
it may not correctly identify the firm's members. Legal Ethics
Opinion 1285 (October 19, 1989). However, the name of a partner
who withdraws from the firm but continues to practice law should
be omitted from the firm name in order to avoid misleading the
public. Legal Ethics Opinion 277 (December 15, 1975); EC 2-13.
In the facts you present, the committee believes that there is no
ethical impropriety with the continued use of the old law firm
name for the limited purpose of winding up its affairs. ABC,
L.C. has a legal existence for the purpose of concluding its
business.
In addition, the use of the name ABC, L.C. for purposes of
winding up the firm while simultaneously practicing under a new
entity using the name ABC & E, P.L.C., in the committee's
opinion, is not improper under the cited rules. The committee
assumes, for purposes of this hypothetical, that C has a legal
right to practice under a firm name containing the names of the
deceased partners (A & B). Based on the foregoing, the use of A
and B in the new firm's name is not a per se misrepresentation of
the identity, responsibility and status of those practicing
attorneys in the firm. The firm could take the additional
measure of disclosing on the letterhead that A and B are
deceased, but this is not required.
[DRs 2-102(A), 2-102(C); ECs 2-13, 2-15; LEOs 277, 1285; New York
State Ethics Opinion 45]
Committee Opinion
September 12, 1997
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