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OBA Ethics Counsel

Ethics Opinion No. 300

Adopted September 18, 1981

INQUIRY

May a firm use or continue to include in its name, the name or names of one or more deceased or retired members of the firm?

OPINION

This practice is permissible. It is authorized by Disciplinary Rule 2-102(b) of the Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App. 3, DR 2-102(B), in the following manner:

[I]f otherwise lawful, a 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 ....

Upon perusal of this passage, it but remains to construe the import of the language, "if otherwise lawful," to reach a determination of the permissibility of this practice. Two choices present themselves. The first is that specific statutory or case law authority must be found to sanction this practice. The second is that the practice is sanctioned unless specific statutory or case law authority proscribes it. Guidance is lent to the resolution of this dichotomy through the definition of "lawful" as provided by Black's Law Dictionary, 4th ed. (1957). The inter alia definition of "lawful" most apposite in answering the present inquiry is "not contrary to nor forbidden by the law."

Substituting the definition for the term "lawful," the DR 2-102(B) formula, supra, now reads:

[I]f otherwise not contrary to nor forbidden by law, a 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 .... (Emphasis supplied).

This reading of the rule then clearly vitiates the viability of the first choice and elevates the second choice to the status of being the applicable construction.

That specific statutory or case law authority is not required is supported by the predecessor of DR 2-102(B), the old "Canons of Professional Ethics No. 33, Partnership-Names," which looked only to local custom for the permissibility of the practice:

In the selection and use of a firm name, no false, misleading, assumed or trade name should be used. The continued use of the name of a deceased or former partner, when permissible by local custom, is not unethical, but care should be taken so that no imposition or deception is practiced through this use.

The deduction to be arrived at after considering both the old Canon 33 and DR 2-102(B) is that the later pronouncement is intended to discard the somewhat nebulous "local custom" standard in favor of the more readily ascertainable "if otherwise lawful" one. The upshot of this change may be to enlarge as a group the number of firms choosing to adopt this practice, but in no wise should the conclusion be made that its intendment is one of constriction. If local custom restricted the use of the retired or deceased partner's name to a temporary period, no such restraint is now imposed, so that the name use may be permanent.

The rationale for the rule permitting this practice was stated succinctly in Opinion Number 267 of the Committee on Professional Ethics and Grievances of the American Bar Association (1945):

The continued use of a firm name by one or more surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted .... 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 goodwill attached to the firm name. In the case of a firm having widespread connection, this goodwill is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the goodwill 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 ....

This rationale remains persuasive today.

One final, albeit important, consideration must be addressed. Precaution must be taken that deception does not result from the adoption of this practice. The full text of the first sentence of DR 2-102(B) is as follows:

A lawyer in private practice shall not practice under a trade name, a 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, except that the name of a professional corporation or professional association may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization, and if otherwise lawful a 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 successors. (Emphasis supplied)

Clearly evident is the concern that lawyers not practice under misleading firm names. Therefore, in order to secure the confidence of the public in the integrity of the Bar, any firm which elects to retain as part of its name the name or names of one or more deceased or retired members must plainly indicate, wherever appropriate to abrogate any perceptible potentiality of deception, that such members are indeed deceased or retired, as the case may be. Such indication on firm stationery and in professional listings, such as Martindale-Hubbell, is expressly required.