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OBA Ethics Counsel

Ethics Opinion No. 77

Adopted September 21, 1934

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

"Mr. Smith, the senior member of our firm, Smith, Jones, and Smith, has been appointed a member of ............ (a high public office) has accepted the appointment and is now serving. He ceased to be a member of our law firm the day preceding the date he took his oath of office. He has no further connection or interest in the law firm's business.

We are still operating under the name of Smith, Jones and Smith. Is this permissible under the rules of professional conduct of The State Bar?

Should we carry his name on our stationery, and, if so, in what manner? If we should take his name off our stationery, could we still practice under the firm name of Smith, Jones and Smith?"

In response:

The Board is of the opinion, under the circumstances detailed, that it is improper

(a) To continue the practice under the firm name of Smith, Jones and Smith; or

(b) To carry the name of Mr. Smith, the senior, on the firm stationery.

The Board takes notice of the fact that the office now held by the former partner is quasi judicial in its nature, and that members of the bar, including the members of his former partnership have the privilege of appearing before the tribunal of which the former partner is a member. It therefore holds that Rule 35 interdicts the use of the name of the former partner in the firm name.

See on the general subject, Opinion No. 6 A.B.A. Committee on Professional Ethics and Grievances Vol. 50 A.B.A. Reports 509; And Answer to Question 67, given by the Committee on Professional Ethics of the New York County Lawyers Association wherein it is held that "it is improper for lawyers to continue under a firm name which contains the name of a former partner who has been elected to the bench."

The use of the senior Mr. Smith's name on the firm stationery is too susceptible of misconstruction as to the motive therefor. The impression given to the public generally by the use of the name of the former partner in the firm name would not be one conducive to the honor and dignity of the profession. Rule 31 of the Rules of Professional Conduct enjoins upon a member of The State Bar the duty to "strive at all times to uphold the honor and to maintain the dignity of the profession"; and, as we frequently have had occasion to observe, it is the duty of a member of The State Bar, not only to avoid all impropriety, but also to avoid all appearance of impropriety.

In conclusion, as said in Advisory Opinion No. 54 (June 1933 Bar Journal) "a member of The State Bar should refrain from creating a condition, regardless of express prohibition, which might tend to bring reproach upon the profession."