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OBA Ethics Counsel

Ethics Opinion No. 21

Adopted December 26, 1932

The Board is in receipt of the following request for an opinion:

"'A' and 'B' are partners engaged in the general practice of law. They desire to associate with them another member of the bar, 'C', on a salary but not as a partner. They desire to change the firm name to 'A, B and C, Attorneys at Law and to continue under that name.

Is this permissible?"

In response:

In the opinion of the Board it is not; for reasons well expressed by the Committee on Professional Ethics of the American Bar Association, with which the Board agrees.

In opinion No. 106 of that committee, the syllabus is:

"It is improper for a group of lawyers to hold themselves out as a partnership, when no partnership relation in fact exists, one member of the group employing the others at fixed salaries."

In the opinion it is said:

"It is a well-known fact that ordinarily a lawyer is not taken into a law partnership, even as a junior member, until he has acquired a standing at the bar through practice and experience and demonstration of his professional qualifications and ability.

To hold a lawyer out as a full member of a partnership, who is merely an employee, dignifies him with a professional position which he has not attained.

It is a misrepresentation to the public and a violation of Canon 32 which enjoins upon the lawyer to so demean himself that he will enjoy 'a deserved reputation for fidelity to private trust and public duty, as an honest man'."

NOTE: Canon 32 appears as Rule 34 of the Rules of Professional Conduct.

In opinion No. 115 of that committee it was held that it was improper for attorneys to hold themselves out as partners when in fact they were not. The facts upon which the opinion was predicted held that the holding out had been in effect. The committee said:

"In the opinion of the committee, a proper appreciation of professional responsibility forbids the continuation of such a course of conduct ... Local custom, if any, is unavailing as a justification."

The facts upon which the same committee in opinion No. 126 again held that it was improper for lawyers to hold themselves out as partners when in fact they were not, were that A, B, and C entered into an agreement with "D", not a partner, that the firm name of A, B, C, and D was to be used for purposes of court appearances, pleadings and general court practice. The committee, after referring to its opinions Nos. 106 and 115 said:

"Prescinding from the consideration that the facts set forth may result in deception of the court, the committee is of the opinion that the above agreement is professionally improper."