Ethics Opinion 279

Ethics Opinion 279

1.25.1973

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Committee on Professional Ethics

Opinion #279 – 01/25/1973 (67-72)

Topic: Firm Name; Letterhead; Deceased Partners
Digest: Proper to continue names of deceased partners in firm name and to list on letterhead of bona fide successor firm
Code:  DR 2-102(A)(4); 2-102(B) EC 2-11; Former Canon 33.

QUESTION

1. May a successor law firm include in its name the names of deceased partners who were members of the firm at the time of their death, even though new names are added referring to persons who were not connected with the firm during the lifetime of the deceased partners?
2. May the successor firm list on its letterhead the names of the deceased partners with the dates they were partners in the predecessor firm?

OPINION

DR 2-102 (A) (4) provides in part:”The letterhead of a law firm may give the names and dates of predecessor firms in a continuing line of succession.”DR 2-102(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.”The codifiers thus recognized as generally acceptable a practice which theretofore had been regarded as permissible only if approved by prevailing local custom. Former Canon 33. The justification for sanctioning this practice, in the absence of danger of deception, is that all of the partners contribute to the good will attached to a firm name, and that surviving partners should not be deprived of their right to a benefit to which they contributed their time, skill and labor. ABA 267 (1945).The phrase “a predecessor firm in a continuing line of succession” is not defined in the Code, but EC 2-11 provides that the use of the name of a deceased or retired partner is permissible only “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.
“Even before the adoption of DR 2-102(B), it was held that in New York the continued use of a deceased partner’s name in the name of a firm to which a new partner is added was in accord with prevailing practice and was permissible. N.Y. State 45 (1967); N.Y. County 316 (1933). The fact that a new partner was not associated with the firm during the lifetime of the deceased partner is not such an interruption of the partnership continuity as to constitute a break in the “continuing line of succession.” N.Y.State 2 (1964); ABA Inf. 555 (1962); ABA Inf. 558 (1962). Under the Code we held, in N.Y. State 266 (1972), that it was proper to continue the name of a retired partner in the title of a bona fide successor firm.It is not improper to list separately the names of the deceased partners provided that in such event the dates they were members of the firm are also listed. ABA 208 (1940); ABA 267 (1945); ABA Inf. 541 (1962); Drinker, Legal Ethics, 289, 303 (1953).Accordingly, both questions are answered in the affirmative.