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The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 65-55
September 7, 1965

The continued use of the name of a deceased partner in a law firm's name, when permissible by local custom, is not unethical, but care should be taken that no imposition or deception is practiced through this use. If there is genuine continuity of the firm of which the deceased lawyer was a partner at the time of his death, the adding of a new name to the firm name is not necessarily improper, especially where the added name is that of a lawyer who was a member or associate of the firm while the deceased lawyer was a member and who has practiced with the firm continuously since that time.

Canon: 33
Opinions: ABA 97, 258; ABA Informal 381, C-541, C-555, C-598, C-684, C-730; New York City 725; New York County 316

Chairman Kittleson stated the opinion of the committee:

A member of The Florida Bar has requested the Committee's advice on a question involving his firm's name. The senior partner in his firm has recently died, and the firm is continuing his name in the firm name.

Advice in sought on the question of adding a lawyer's name to the firm name which already contains the deceased partner's name.

A majority of the Committee advise that if retention of the deceased partner's name is otherwise appropriate and proper under Canon 33, the addition of a new name to the firm name is not necessarily improper. This position is also the present position of the American Bar Association Committee on Professional Ethics, as expressed in its Informal Opinions C-555 (1962) and C-598 (1962).

The propriety is more evident, of course, where the added name is that of a lawyer who was an associate of the firm while the deceased lawyer was a member and who has practiced with the firm continuously since that time.

The American Bar Association Committee on Professional Ethics once questioned whether under the wording of Canon 33 the firm name can properly include the name of a deceased partner and that of one who was never a partner with him. ABA Informal Opinion 381. Citing this opinion, Mr. Henry S. Drinker in his book Legal Ethics (1953), at page 208, said “There would seem to be a question, under the wording of the Canon, as to the propriety of adding the name of a new partner and at the same time retaining that of a deceased partner who was never a partner with the new one.” But Mr. Drinker recognized the existence of two New York ethics opinions approving the practice: Opinion 316 (1933), New York County Lawyers' Association, and Opinion 725 (1948), Association of the Bar of the City of New York.

The conditions for application of Canon 33 are summarized below.

1. Local custom. This is expressly required by Canon 33 and emphasized in nearly all opinions dealing with Canon 33. The New York opinions point out that the practice of continuing to use a firm name after one or all of the original partners are dead has existed in New York City for many years and has been regarded as proper. If, according to local custom, usage, and statutory provisions, a firm name purports to identify the individual members thereof, the use of a deceased or former partner's name would be improper. Opinion 97 (1933) and Informal Opinion C-541 (1962), American Bar Association.

2. Absence of imposition or deception. This, too, is expressly required by Canon 33. The opinions dealing with Canon 33 point out that there must be no circumstances by reason of which the continued use of the deceased partner's name would mislead or deceive. Among other things, this requirement demands that the firm's letterheads, listings, etc., clearly show the fact of the deceased partner's death.

3. Firm continuity. The opinions stress that there must be genuine continuity of the firm of which the deceased lawyer was a partner at the time of his death. If the continuity of the firm is interrupted, the use of the deceased lawyer's name is no longer permissible. Opinion 725 (1948), Association of the Bar of the City of New York. The continued use of the deceased partner's name is the privilege of the surviving partners who continue as a firm and is not available to individual members after the firm is dissolved. Opinion 258 (1943), American Bar Association. The continuity requirement does not allow the grandson of a deceased lawyer who was not in partnership with him to form a partnership with another lawyer and show the grandfather's name on the letterhead. Informal Opinion C-684 (1963), American Bar Association. Nor does it allow a lawyer to show on his letterhead the names of his father and grandfather, unless there was a continuing partnership between the grandfather and the father and between the father and the lawyer in question. Informal Opinion C-730 (1964), American Bar Association.

4. Reasonable time. No time limitation is expressly stated in Canon 33. Some committee members, however, believe that the deceased partner's name may be continued in the firm name only for a limited time. Again, local custom is important. In New York, Boston, and perhaps some other metropolitan areas, the names of reputable firms may, by custom and accepted usage, consist of names of partners who have been dead for many years. This practice has not, however, existed in Florida, and the customs and usages here may demand a reasonable time limit. [See Florida Ethics Opinion 72-39, in which the committee stated that a deceased member’s name may be used indefinitely if the firm is in continuous existence.]

We call attention to the Florida Fictitious Name Statute, Section 865.09, Florida Statutes (1963), which defines a fictitious name as including any trade name “other than the proper name or known called names of those persons engaged in such business or professions.”

[Revised: 08-24-2011]