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The Florida Bar
www.floridabar.org
PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 72-39
November 27, 1972

The name of a previously unnamed partner may be added to a firm name despite the continuing use of a deceased former partner's name.

[Please note that current Rule 4-7.9, Rules Regulating The Florida Bar, permits trade names.]

Canon: 33, old Canons of Professional Ethics
CPR: EC 2-11; DR 2-102
Opinions: 63-1, 64-20, 65-55, 67-3; ABA Formal 267; ABA Informal 388, 541, 598, 605, 959, 1080

Vice Chairman Zehmer stated the opinion of the committee:

A member of The Florida Bar states that he and his deceased father had engaged in the practice of law for several years under the firm name of (Jones and Jones). A few months before his father's death recently, an associate (Smith) was given a partnership interest in the firm, but no change in the firm name was made at that time. The inquirer now desires to change the firm name to (Jones, Jones and Smith), showing in the customary manner that his father is now deceased. The inquirer also states that he and (Smith) expect to eventually change the firm name to (Jones and Smith). The specific question presented is whether (Smith) may now be added to the original firm name or whether such addition will require deletion of the deceased father's name.

Before adoption of the Code of Professional Responsibility, this and similar problems involving the use of the name of a deceased partner were governed by Canon 33. Such problems have been considered by this Committee under that Canon. See Florida Opinion Nos. 63-1 [since withdrawn], 64-20, 65-55 and 67-3 [since withdrawn]. Similar questions under Canon 33 have also been the subject of much discussion by the Standing Committee on Professional Ethics of the American Bar Association. See ABA Formal Opinion No. 267 and Informal Opinion Nos. 388, 541, 598, 605, 959 and 1080. The history and development of this custom is thoroughly discussed in many of these opinions, especially Florida Opinion 65-55.

The question is now governed by DR 2-102 and EC 2-11 of the recently adopted Code of Professional Responsibility. EC 2-11 states in part that:

The use of a trade name or an assumed name could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under his own name, the name of a lawyer employing him, a partnership name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional legal corporation, which should be clearly designated as such. 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, if the use of the name is authorized by law or by contract, and if the public is not misled thereby.

EC 2-11 contains a footnote to ABA Opinion No. 267 which explains:

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 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 [old ABA Canon 33] the individuals constituting the firm from time to time are listed.

Accordingly, DR 2-102(B) specifically prohibits a lawyer from practicing under “a trade name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm,” but it expressly recognizes and preserves the exception that “if otherwise lawful 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.”

Former Canon 33 permitted use of a deceased partner's name only when “permissible by local custom.” No such provision is contained in the new CPR and this omission apparently indicates a purpose to make the practice in this regard uniform. Moreover, although some of the previous opinions of this Committee under Canon 33 have indicated that continuation of a deceased partner's name in the firm name may be permissible only for a “reasonable time” (see Opinions 63-1, 65-55 and 67-3), the silence of the new CPR on any time limitation, considered in light of the deletion of the limitation imposed by “local custom,” also suggests that a deceased partner's name may be used indefinitely if the other prescribed circumstances exist, primarily the circumstance of firm continuity.

The main objection to continued use of a deceased partner's name is the possibility of deceiving or misleading the public. However, as the cited Florida Opinions indicate, this possibility can be avoided by showing the fact of the partner's death on the firm's letterheads, listings, and so forth. DR 2-102(A)(4) specifically authorizes the inclusion in a law firm's letterhead of the “names and dates relating to deceased and retired members.”

Therefore, it appears to the Committee that the inquirer's proposal to add (Smith) to the firm name and continue using the name of his deceased father is compatible with the provisions of the Code of Professional Responsibility so long as the fact of the deceased partner's death is appropriately shown, which the inquirer has stated will be done.

Two members of the Committee believe that in the interest of avoiding the possibility of misleading the public, the inquirer should change the name to (Jones and Smith) at this time and only show the deceased father's name on the listing of attorneys with the date of his birth and death.

This inquiry does not seek advice on the change of a firm name so as to continue a deceased partner's name and add the name of one who had never been a partner of the deceased partner. Accordingly, the Committee expresses no opinion on that precise question.

[Revised: 08-24-2011]