FLORIDA BAR ETHICS OPINION
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.
33 [See current 4-7.21]
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
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.”