NYSBA Ethics Opinion 70

NYSBA Ethics Opinion 70

2.2.1968

By Committee on Professional Ethics

NEW YORK STATE BAR ASSOCIATION

Professional Ethics Committee Opinion

Opinion #70 – 02/02/1968 (35-67)

Topic: Firm Name, Retired Partner
Digest: Local custom dictates use of retiring partner’s name
Canon: Former Canon 33

QUESTION

Question has been raised as to whether partner A who purchased the entire interest of retiring partner B in the two-man law firm “A and B’ may continue to use B’s name as part of the firm name and continue to keep name in a list of names on the left side of the firm letterhead with an indication, in parenthesis, that B is retried.  Along with B’s name in that list will appear the names of A and one associate.

OPINION

The Committee is of the opinion that it would not be improper to use the name of the former partner in the above-stated manner if the requirements of Canon 33 of the Canons of Professional Ethics are met. This specifically provides:”The continued use of the name of a deceased or former partner, when permissible by local customs, not unethical, but care should be taken that no imposition or deception is practiced through this use.”In Opinion 267 of the Standing Committee on Professional Ethics of the American Bar Association, cited in Informal Decision No. 505 (12/26/61), it was specifically held that the continued use of the firm name by a sole surviving partner was not unethical in a community in which local custom did not serve to identify the firm name with the individual members of the firm. Where local custom is to include only the names of active partners in the firm name thereby creating the implication that each person whose name is included in the firm name is in fact an active member of the firm, the continued use of the name of a retired partner even with the marginal notation on stationery as to the retirement of one partner could be misleading.  The Committee believes that the marginal explanation would not be sufficient to satisfy the intent of Canon 33 in this situation, for reasons that there are numerous occasions when the firm name is used, or noticed, outside of the content of use on law firm stationery. Therefore, local custom is controlling.In addition, it has been stated in Opinion No. 67 of the Committee on Professional Ethics of New York County Lawyers’ Association, that:”…there is no impropriety in the continued use by surviving or continuing members of a legal co-partnership of a firm name which contains the name of a deceased or retiring partner, provided the provisions of the Partnership Law (if applicable) are complied with, and provided further that there are no special circumstances, such as the disbarment of the retiring partner or his elevation to the Bench, which would make such a course improper.”It may be noted here that custom in New York County has been recognized as permitting the continued use of deceased or retired persons named.  Opinion 316.See also Professional Ethic-et #2 New York Bar Newsletter, November, 1967.