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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 79-06A law firm can continue to use the name of a deceased lawyer in the firm name, even though the firm name is subsequently changed to add new partners who were not associated with the firm at the time of the deceased partner's death.

Question:
This question involves the retention and utilization of a deceased partner in a firm name. The factual situation is as follows:

Attorneys John Doe and Richard Roe practice in a partnership under the name of Doe and Roe. Doe died in 1978. Roe continued to practice under the same partnership name.

The questions which arise are as follows:

(1) Roe contemplates taking in Smith as an associate. May Roe continue to practice under the name of Doe and Roe, showing the dates of birth and death of Doe in parenthesis and showing Smith as an associate?

(2) If the association of Smith proves beneficial, Roe contemplates taking Smith as a partner. If the new partnership is formed, may Roe and Smith continue to use the deceased partner's name as:

(a) Doe and Roe John Doe (1900-1978) Richard Roe Sam Smith or (b) Doe, Roe and Smith John Doe (1900-1978) Richard Roe Sam Smith or (c) Roe and Smith (Formerly Doe and Roe) John Doe (1900-1978) Richard Roe Sam Smith This problem is addressed in EC 2-11 which states:

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 bonafide successor or a firm in which the deceased or retired person was a member. . . .

Opinion:
In general, the practice of retaining a deceased partner's name is acceptable as long as local custom allows such a retention and the public is not mislead. A quick review in consideration of the firm names throughout South Carolina leads one to the conclusion that the custom of retaining the name of a deceased partner is state-wide. Further, as is stated in Opinions On Professional Ethics; Formal Opinion 267 (June 21, 1945) at page 595:

The continued use of a firm name by one or more of the surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted by the Cannons of Ethics. 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 good will attached to the firm name. In the case of a firm having wide-spread connections, this good will is disturbed by a change in the firm name every time a partner dies, and that reflects a loss in some degree of the good will to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid the loss, the firm name is continued, and to meet the requirements of the Cannon, the individuals constituting the firm from time to time are listed.

There is the additional factor that law firms, particularly in the South, seek to retain something of their heritage and to honor past members who have contributed to the success of a firm by the retention of the partner's name. Indeed, it seems not only callous, but disrespectful, to immediately remove the name of a deceased partner from the partnership name when that attorney may have devoted many of his years and best efforts to the advancement of his firm. Hence, it is clear that the practice of retaining the name of a deceased partner is permitted by local custom.

While an attorney's name may be retained in the firm name, the public must not be misled. D.R. 2-102(A)(4) states:

A letterhead of a law firm may also give the name of members and associates, and names and dates relating to deceased and retired members.

Hence, it is by the letterhead and other listings (such as the office door) that the present membership in a firm is determined.

The next point of consideration is the form of such a listing. All of the options cited above are generally employed. The selection of one form of listing over another may be determined by local custom or personal preference.

It would appear, however, that form (a) is the most commonly used. This listing clearly falls within the confines of D.R. 2102(A)(4) recited above in that the active members of the firm are clearly designated.

Form (b) poses something of a problem in that Smith was never one of Mr. Doe's partners. However, this form is also allowable. The firm of Doe, Roe and Smith can be viewed as a firm in the continuing line of succession from that of Doe and Roe.

A firm in the continuing line of succession may be defined as one in which a partner dies, but the firm in which he was a member continues to exist. If a partner, dies and the surviving partners separate, then the firm no longer exists and neither surviving partner would have the right to use the old firm name. This problem is addressed in the Opinions On Professional Ethics; Formal Opinion No. 267 (June 21, 1945) at 595:

It is entirely clear that, as a matter of ethics the death of a partner need not be reflected by a change in a firm name, where the remaining partner or partners continue to practice provided deception is avoided, as by giving the names of the partners of the letterhead or listing.

This matter has been also considered in Opinions on Professional Ethics; Formal Opinion No. 555 at page 16:

This committee has taken the position that it is proper for the law firm to retain in the firm name the name of a deceased partner when local custom permits such retention and we do not think [sic] that the appropriateness of such a retention is changed by the fact that new names which are added to the firm name refer to persons who are not connected with the firm in any way at the time the decedent was an active partner in the firm.

The third option, while less common, would also seem to be allowable. While no decision can be found on point, such a structure would seem to be allowed in that it is not misleading and commonly employed in a locale.