LEGAL ETHICS OPINION 1706 LAW FIRM NAME; USE OF DECEASED
PARTNER'S NAME BY ATTORNEY WHO
NEVER HAD OWNERSHIP INTEREST IN
FIRM AND DID NOT WORK DIRECTLY WITH
DECEASED PARTNER
You have presented a hypothetical situation in which partner A,
of the law firm, "A&B," dies, and at the request of A's family, B
continues to use the name A&B for his sole practice, with A
listed on the letterhead with his date of death. Subsequently, B
hires C as an independent contractor to provide legal services to
clients of "A&B." C works exclusively for "A&B" and is listed on
the letterhead of "A&B" as an associate. B now plans to leave
private practice to become a full-time prosecutor, and C would
like to purchase the physical assets of the practice and operate
as a sole proprietor using the name "A&C." C would obtain
permission from A's executor and/or family, including a minor in
the custody of Mrs. A, to use A's name.
Under the facts you have presented, you have asked the committee
to opine as to the propriety of the use of A's name by C, when C
has never had an ownership interest in the practice and never
worked directly with A, although C has worked exclusively with
"A&B" for most of his legal career and has been listed as an
associate on A&B's letterhead. In the alternative, could B and
C ethically form a partnership called "AB&C" for the remainder of
B's time in private practice, with C then using the name "A&C"
after B leaves the firm? If it is permissible for C to use the
name A&C in either instance, does C need permission to use A's
name from all three of A's children, from any one of A's children
and/or A's Executor? Would it be considered misleading or
impermissible for C, as a sole proprietor, to use the trade name,
"A&C" if potential clients asking for A are immediately informed
A is deceased, and this information is also disclosed on the
letterhead?
The appropriate and controlling disciplinary rule relative to
your inquiry is DR 2-102. Also pertinent is EC 2-13.
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, misleading or
deceptive.
DR 2-102 (B), in pertinent part, allows a lawyer in private
practice to use a trade name so long as it does not violate DR 2-
102(A).
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 directs 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 bone fide
successor, to use the names of deceased or retired partners'
names if authorized by law or contract.
As to whether C, as an independent contractor of B's firm, may
use the name, "A and C," after B's departure, 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 a firm a name that may not correctly identify
the firm's membership. LEO 1285. Pursuant to EC 2-13, this
committee has previously found it not misleading for a firm to
continue using the name of a retired partner or the name of a
deceased partner. See, LEOs 1376 and 1704. In each of those two
instances, there remained attorneys who had been partners of the
retired/deceased attorney. In contrast, in your inquiry, C has
never been a partner of A or B; he has only been an independent
contractor of B.
Whether C's status as an independent contractor meets the "bona
fide successor" requirement of EC 2-13 is a legal issue beyond
the committee's purview. The committee directs your attention to
another authority which has opined that it would be improper for
an attorney who acquires a practice from another attorney to use
that retired attorney's name unless he formed a partnership with
the retiring partner prior to the retirement. Maryland Bar
Association, Inc., Committee on Ethics, Op. 93-17 (1992).
In your second inquiry you ask whether C's forming a partnership
with B under the name "A, B & C" for the remainder of the time
prior to B's departure enables C to properly use A's name in his
own practice. This inquiry likewise raises a legal issue beyond
the purview of the committee. Provided that such a formation
would place C in the ownership succession, i.e., transform C into
a "successor in interest," it would not be improper for C to
practice under the name of "A & C." As to your third inquiry
regarding from whom C must seek consent to use A's name, that
determination also involves a legal issue that is beyond the
purview of the committee.
Your fourth inquiry as to whether it is misleading for C, as a
sole practitioner, to use the firm name "A and C," raises the
concern that such a name might suggest that there is more than
one attorney in the office. The committee has previously found
such a suggestion to be misleading in the use of the word,
"group," or the word, "associates," by sole practitioners. See,
LEOs 956 and 1532. However, the committee distinguishes the use
of such general collective nouns from the use of the specific
name of the deceased attorney. Such use is specifically
permitted in EC 2-13, assuming that the firm's letterhead will
establish that A is deceased. See, LEO 1704. Therefore, the
committee opines that the fact that C is a sole practitioner does
not prevent him from practicing under the firm name of "A and C"
provided that C is a "bona fide successor" to the firm.
[DRs 2-102 (A), (B), (C); EC 2-13; LEOs 956, 1285, 1376, 1532,
1704; Maryland Ethics Op. 93-17;]
Committee Opinion
November 21, 1997
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