Ethics Opinion 277

Retention by Former Law Firm of Withdrawing Partner’s Name

A law firm may retain in its name the name of a former partner, except where the former partner is practicing law elsewhere or where the firm is prohibited by law from retaining the name.

Applicable Rules

• Rule 7.1 (Communications Concerning a Lawyer’s Services)
• Rule 7.5 (Firm Names and Letterheads)

Inquiry

Lawyer B was a founding partner of the law firm “A & B,” and now plans to sever her relationship with the firm. She is unsure whether she will continue to practice law after she resigns from “A & B” but, regardless, wants her name removed from the firm’s name after she departs. She inquires whether the Rules of Professional Conduct require the law firm, at her request, to remove her name from the firm name once she resigns.

Discussion

This inquiry presents a particular aspect of a broader question concerning the circumstances under which a law firm may ethically retain in its name the name of a lawyer no longer associated with the firm. The pertinent Rule of Professional Conduct is 7.5(a), providing that:

A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

The relevant portion of Rule 7.1 incorporated in Rule 7.5(a) is as follows:

(a) A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or

(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.

Taken together, these provisions can be distilled to a prohibition on the use of a law firm name that is false or misleading. As regards lawyers who have departed a law firm, Comment [1] to Rule 7.5 states that, “it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm.”

From Comment [1], and its apparent premise that the use of a lawyer’s name in a firm name would imply the presence there of that lawyer, one could conclude that it is unethical to include in a firm name the name of any lawyer no longer associated with the firm, whether by withdrawal, retirement or death. In each of these situations, the firm may be falsely implying that such lawyer remains associated with the firm.

But at least as regards retired or deceased partners, ethics law has been clear since at least the time of the predecessor Code of Professional Responsibility that the names of such partners could ethically be included in law firm names. Former Disciplinary Rule 2-102(B) provided that “if otherwise lawful, a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or a predecessor firm in a continuing line of succession.” Former EC (Ethical Consideration) 2-11 expanded on this provision as follows:

For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public.

The current Rules of Professional Conduct continue this acknowledgment that it is not false or misleading per se to include in the firm name the name of a partner no longer associated with the firm, although they do so by characterizing such usage as a trade name. Rule 7.5(a) specifically recognizes that a lawyer may practice under a trade name, and Comment [1] thereto notes that “any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification.”

So, at least for deceased and retired “name partners,” Rule 7.5(a) recognizes that its concern about falsely implying the presence of a lawyer no longer associated with the firm does not cover all situations, and must yield in some circumstances to another consideration—that a firm name often only identifies a group of lawyers practicing together in a definable group, and does not necessarily imply that the name partners are themselves practicing there.¹

Ethics opinions, in the District of Columbia and elsewhere, have long recognized that it is permissible for law firms to use trade names that include the names of deceased or retired partners. In Opinion No. 224 (Dec. 17, 1991), this Committee determined that a lawyer is not precluded from continuing to use a former partnership name, where his partners had retired or otherwise left the firm. Similarly, in Formal Opinion No. 90-357 (1990), the ABA recognized that if a lawyer, who is a name partner in a law firm, is retiring to become “of counsel,” the lawyer’s name may be retained in the firm’s name. Other jurisdictions have reached the same conclusion. See Ethics Comm. of the Mass. Bar Assoc., Op. No. 81-5, (April 14, 1981); and Comm. on Professional and Judicial Ethics of the State Bar of Mich., Informal Op. CI-1001 (April 30, 1984).

To fall under the “trade name” exception, however, the use of the deceased or retired partner’s name must be permitted under the law applicable to one’s property value in the commercial use of his or her name. Such use could, depending on the circumstances, be governed by common law or partnership or corporate law. See, e.g., Nercessian v. Homasian Carpet Enterprises, Inc., 60 N.Y.2d 875, 458 N.E.2d 822 (1983). If the law firm, under such law, does not have the legal right to use the deceased or retired lawyer’s name, then inclusion of the lawyer’s name in the firm name would not be lawful, and it would therefore be misleading for the firm to use it as such. See, e.g., Cunetto House of Pasta v. Tuma, 689 S.W.2d 690 (Mo. Ct. App. 1985); Saltzberg v. Fishman, 462 N.E.2d 901 (Ill. App. 1984). See also Code of Professional Responsibility EC 2-11 (quoted above).

In this regard, the consent of a retired partner or the estate of a deceased partner to continued use of the lawyer’s name is an ethical consideration only if such consent is necessary to provide the law firm with the necessary legal authority to continue to use the name. Such specific consent may not be required under the applicable law if, for example, a partnership agreement gives the law firm the continuing right to use the lawyer’s name after his departure from the firm, or the firm has acquired a common law right to continued use of the lawyer’s name.

The continued use of the name of a withdrawn partner not practicing elsewhere is akin to that of a deceased or retired partner—neither is associated with the law firm, and neither is practicing law. If it is ethical to include the name of a deceased or retired partner in the firm’s name, we cannot see why the situation is otherwise for a withdrawn partner. In both situations, the law firm’s name is a trade name, and not one which asserts the presence of the name partners as practicing lawyers with the firm.

It is, however, misleading (and therefore a violation of Rule 7.5(a)) to include in a firm name the name of a lawyer practicing elsewhere. Under such circumstances, according to the Rule, the possible identifying value of the firm name as a trade name yields to the greater possibility that the public will be misled by retention of the departed lawyer’s name in the firm name.

In the specific inquiry before us, then, the ethical propriety of the law firm’s continued use of the inquirer’s name after her departure from the firm (and over her objection) would depend on:

(1) whether such use was authorized under common law, the firm’s partnership agreement or otherwise, and

(2) whether the lawyer did not practice elsewhere.

If both conditions are satisfied, then the inquirer’s lack of acquiescence in the use of her name is ethically irrelevant.

Inquiry No. 97-2-7
Adopted: November 19, 1997

1. The New York Court of Appeals even rejects the premise that inclusion of a lawyer’s name in a firm name implies anything about that lawyer’s practice. In New York Criminal and Civil Courts Bar Ass’n v. Jacoby, 472 N.Y.S.2d 890 (1984), New York bar authorities sought to restrain the use in New York of a law firm name that did not include the name of any lawyer licensed to practice in New York, contending that it was misleading to do so. The court rejected the contention:
  We . . . conclude as a matter of law that use of a firm name comprised of surnames, without more, does not constitute any holding out that there are individual partners bearing those surnames who are admitted to practice in New York, or indeed that there are partners in the firm who bear such surnames, wherever admitted. . . . [T]he firm name is an institutional description and its use constitutes no representation that anyone bearing a surname corresponding to the names in the firm title is available to render professional services. Id. at 893. (Emphasis added.)