NYSBA Ethics Opinion 45

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION
Professional Ethics Committee Opinion

Opinion #45 – 01/26/1967 (23-66)

Topic: Firm Name, Deceased Partner
Digest: Not improper to continue use of deceased partner’s name in firm so long as not contrary to law or custom, even though other partners’ names may change
Canon: Former Canon 33

QUESTION

Mr. W, the senior partner in our firm, W, X, Y & Z, died on February 6, 1966. We have, since his demise, been continuing our practice under the same firm but with the date of Mr. W’s death indicated after his name on our letterhead.We would appreciate receiving a formal opinion from the Committee as to the propriety of our continuing this practice. We should also like an opinion as to whether or not it is permissible to drop one of the three names of the surviving partners and continue the use or Mr. W’s name in the firm title. For example, would it be permissible for the firm to continue practicing under the name of W, X &Y in the event Mr. Z were no longer associated with the firm?Are we correct in our assumption that if it is permissible to continue our practice under the firm name of either W. X. Y & Z, or W, X & Y, in the event other lawyers are admitted to the partnership subsequent to Mr. W’s death, their names may not be properly admitted to the firm name.

OPINION

Canon 33 provides, in part, that:In the formation of partnerships and the use of partnership names care should be taken not to violate any law, custom, or rule of court locally applicable. …..In the selection and use of a firm name, no false, misleading, assumed or trade name should be used. The continued use of the name of a deceased or former partner, when permissible by local custom, is not unethical, but care should be taken that no imposition or deception is practiced through this use.”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.  A.B.A. Opinions 6 (before adoption of Canon 33) and 267; N.Y. County Opinions 316, 411.  As stated in A.B.A. Opinion 267:”The reason for this is that all of the partners have by their joint and several efforts over a period of years contributed to the good will attached to the firm name. In the case of a firm having widespread connections, this good will is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid this loss the firm name is continued and to meet the requirements of the Canon the individuals constituting the firm from time to time are listed.”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 the new partner is added to the firm.As stated in New York County Lawyers’ Association Opinion 316:”It is not unusual in New York City for the law firms to continue the use in their partnership names or the names of deceased former partners, even through a succession of firms with new members. In general, this is not deemed in the profession or in the community tobe fraught with imposition or deception * * *.  Where the practice is not condemned by law, or is not inconsistent with local custom, or where conditions imposed by law for the continued use of the names or deceased or fanner partners are complied with the Committee does not consider that the continued use of such names is professionally improper”.(See also NYSBA Opinion #2 – 11/6/64 (2-64))

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