Ethics Opinion 148

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #148 – 07/27/1970 (21-70)
Topic:  Partnership Name, Continued Use of Names of Deceased Partners by Their Former Associate
Digest: Improper for an associate of deceased partners to indefinitely continue use of firm name which contains names of deceased partners only

Code:  DR 2-l02 (B); DR 2-102 (C)  EC 2-11; EC 2-13

QUESTION

A father and son, both attorneys and now both deceased practiced law under the firm name of “Jones & Jones”. May their former associate continue the firm under the “Jones & Jones” name?

OPINION

DR 201-2(B) provides in part:”…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 of a predecessor firm in a continuing line of succession.”DR 2-102(C) provides as follows:”A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners.EC 2-11 provides in part:”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, or if the use of the name is authorized by law or by contract, and if the public is not mislead thereby.”EC 2-13 states:”In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status. He should not hold himself out as being a partner or associate of a law firm if he is not one in fact and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.”Accepted local custom in New York recognizes that 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. (N.Y.State 45 (1967))However, it is the opinion of this Committee that a former associate may not continue the use of a firm name containing the names of the deceased partners because to do so carries the implication that the surviving associate was a partner.  This does not preclude the use of the name for the purpose of winding up the affairs of the former partnership. See N.Y. State 48 (1967) for guidance in connection with the ethical aspects of winding up a deceased lawyer’s practice.

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