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Ethics Advisory Opinions
UPON THE REQUEST OF A MEMBER OF THE SOUTH CAROLINA BAR, THE ETHICS ADVISORY COMMITTEE HAS RENDERED THIS OPINION ON THE ETHICAL PROPRIETY OF THE INQUIRER’S CONTEMPLATED CONDUCT. THIS COMMITTEE HAS NO DISCIPLINARY AUTHORITY. LAWYER DISCIPLINE IS ADMINISTERED SOLELY BY THE SOUTH CAROLINA SUPREME COURT THROUGH ITS COMMISSION ON LAWYER CONDUCT.

Ethics Advisory Opinion 75-01A law firm may use or continue to include in its name the name of a deceased partner of the firm, or of a predecessor firm in a continuing line of succession. If one or more members withdraw from the firm, they have no right to use the name of the deceased partner; however, the continuing partners could continue to use the deceased partner's name.

Facts:
Attorney A, B and C were practicing as partners under the firm name of A, B, and C. Several years ago Partner A passed away and Partners B and C continued to practice under the name of A, B, and C. Subsequent to the death of Partner A, the firm hired Attorney D who later became a partner but the name of the firm was not changed, continuing to operate as A, B and C.

Recently, Partners C and D advised Partner B that they desired to terminate their partnership with Attorney B. Attorney B declined to withdraw from the firm and consequently the firm was dissolved.

Unfortunately, there was no partnership agreement. At the time of the dissolution, Partners B and C owned almost all the firm's assets on a 50-50 basis with Partner D having a nominal interest therein.

Out of respect to the memory of Attorney A, Partners C and D wished to retain his name in the name of the firm, operating under the name of "A, C and D". The letterhead would, of course, reflect the fact that Attorney A was deceased. Attorney A's widow has expressed a desire that Attorneys C and D retain the use of her husband's name.

Attorney B has asserted no claim to the use of Attorney A's name, but at the same time does not feel he can agree that Attorneys C and D are entitled to its use.

Question:
Can Attorneys C and D properly operate under the firm name of "A, C and D"?

Opinion:
This question is apparently controlled by Section EC 2-11 of Canon 2 which reads in part ...for many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby, Disciplinary Rule DR 2-102, subparagraph (B) reads in part:

...if otherwise lawful a firm may use as or continue to include in, its name the names or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession...

The reversion to the use of the firm name of A, C and D would mislead the general public and such use of the name is a privilege available only to the firm. Had B merely withdrawn from the firm, the remaining members who continue the firm might have continued to use the name of A as a former member of the firm. But, after his death, the firm consisted of B, C and D and when B refused to withdraw, the partnership was dissolved and the firm ceased to exist. Hence, C and D's use of the firm name A, C and D would not be in accord with the facts, is misleading and deceptive and accordingly, improper."