The Florida Bar

Ethics Opinion

Opinion 65-55

FLORIDA BAR ETHICS OPINION
OPINION 65-55
September 7, 1965
Advisory ethics opinions are not binding.
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:
Opinions:

33
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
commiteemen, 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.”