Can a law firm keep a retired or semi-retired partner's name in the firm name, and what must it disclose?

Plain-English summary

Attorney A wished to retire as a partner of A, B & C, Ltd. He would be designated "retired" in Martindale-Hubbell but would keep advising clients in estate planning and pension matters part-time. The firm asked whether it could retain his name, what disclosure was needed to keep the firm name from being misleading, and whether his continued part-time work changed the answer.

On the first question, the committee concluded the name may be retained. ER 7.5(a) bars a firm name that violates ER 7.1's prohibition on false or misleading communications. Although ER 7.5 and its Comment address deceased (not retired) partners, the committee saw no reason to treat them differently: neither retired nor deceased partners practice law, so if using a deceased partner's name is not misleading where succession continues, neither is using a retired partner's name. It cited Connecticut, North Carolina, and ABA opinions reaching the same result.

On disclosure, the committee distinguished the firm name from listings of individual lawyers. Given that very large firms are common, the mere use of a firm name that includes a former partner is not misleading and needs no further disclosure. But if the firm lists the names of individual attorneys (on letterhead or elsewhere), it would be misleading not to indicate that a listed individual is no longer practicing, whether through retirement or death.

On the part-time twist, the committee concluded that a name partner's continued part-time work does not make the firm name misleading. It also concluded that a part-time lawyer may continue to be listed by name, and that part-time status itself need not be disclosed, because trying to catalog the many practice arrangements would only confuse the public. The key limit is partnership status and financial responsibility: a firm must not imply someone is a partner if he is not. A semi-retired lawyer who remains a partner and liable to third parties may be listed without added disclosure, but if his financial responsibility to third parties has changed, he must be designated "of counsel" (or similarly), and only if he maintains a "substantial and continuing relationship" with the firm.

Currency note

This opinion was issued in 1991, before Arizona's 2003 adoption of the Ethics 2000 revisions to the Rules of Professional Conduct. The firm-name rule (ER 7.5) has since been amended. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a law firm keep a retired partner's name in the firm name?

A: Yes, under this opinion, as long as there is a continuing line of succession in the firm's identity. The committee concluded that if using a deceased partner's name is not misleading, neither is using a retired partner's name.

Q: Does the firm name alone require any disclosure that the partner is retired?

A: No. The opinion concluded the mere use of a firm name that includes a former partner is not misleading and needs no further disclosure, given how common large firms are.

Q: What about a list of the firm's individual lawyers?

A: The opinion concluded that in any listing of individual attorneys, a fully retired or deceased partner's status must be indicated or the name deleted, because such listings imply the lawyer is actually practicing and available.

Q: How is a semi-retired partner who still works part-time handled?

A: The opinion concluded the part-time lawyer may be listed by name and that part-time status itself need not be disclosed, but if his financial responsibility to third parties has changed he must be designated "of counsel," provided he keeps a substantial and continuing relationship with the firm.

Background and rules framework

The opinion applies ER 7.5 (Model Rule 7.5) on firm names and letterheads together with ER 7.1 (Model Rule 7.1) on false or misleading communications. ER 7.5(a) bars a firm name that violates ER 7.1, and ER 7.5(d) allowed lawyers to state or imply a partnership only when that is the fact. The committee compared the current rules with the predecessor Code provision, DR 2-102(B), which had expressly allowed deceased or retired partners' names in continuing-succession firms.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / AZ ER 7.5 (firm names and letterheads; ER 7.5(d) partnership representations)
• MR 7.1 / AZ ER 7.1 (false or misleading communications)
• Former DR 2-102(B), Code of Professional Responsibility (deceased or retired partners' names)

Other opinions cited:

• Arizona Opinion 180A (1965) and Opinion 80-3 (1980): a deceased partner should be designated as such on letterhead listing all lawyers
• Arizona Opinion 74-33 (1974): "of counsel" requires a substantial and continuing relationship
• ABA Informal Opinion 85-1511 (1985); Connecticut Informal Opinion 87-16 (1988); North Carolina Opinions 1 and 13 (1986); Maine Opinions 77 and 86; Alabama Opinion 83-162 (1983); Oklahoma Opinion 300 (1981); Michigan Informal Opinion CI-617 (1981); Illinois Opinion 709 (1980); Nassau County (N.Y.) Opinion 89-17 (1989); Maryland Opinion 85-71 (1985); Vermont Opinion 83-7: varied approaches to disclosing retired or deceased partners' status

See also

• AZ Ethics Op. 91-09: Law-Firm Trade Names
• AZ Ethics Op. 89-07: Advertising and Firm Names
• AZ Ethics Op. 87-11: Letterhead and Specialization Claims

Source

• Landing page: https://tools.dev.azbar.org/RulesofProfessionalConduct/ViewEthicsOpinion.aspx?id=626

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

4/1991

Use of name of retired or semi-retired partner in law firm's name and the level of required disclosure as to his or her status in listings.

FACTS

Attorney A wishes to retire as a partner from the law firm of A, B & C, Ltd. The inquiring attorney asks whether the law firm may ethically retain Attorney A's name in the firm name. According to the inquiring attorney, Attorney A would be designated in the Martindale-Hubbell Law Directory as "retired," but would continue to advise clients in estate planning and pension matters on a part-time basis.

QUESTIONS

1. Under the Arizona Rules of Professional Conduct, may the name of a retired partner be used in the name of a law firm?

2. What disclosure, if any, is necessary to insure that a firm name which includes a retired partner's name is not false or misleading?

3. Is any further disclosure required when an attorney has retired as a partner, but is continuing to advise some clients on a part-time basis?

ETHICAL RULES INVOLVED

ER 7.1. Communications Concerning a Lawyer's Services

ER 7.5. Firm Names and Letterheads

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

OPINION

ER 7.5(a) prohibits a lawyer from using a firm name that violates ER 7.1. ER 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or his or her services. ER 7.1(a) defines one type of a false or misleading communication as one that contains a material misrepresentation of fact or law, or omits a fact necessary to make a statement, considered as a whole, not materially misleading.

The predecessor to ER 7.5(a), DR 2-102(B)[1], specifically allowed a law firm to use the name of either deceased or retired partners in the firm name as long as there was a continuing line of succession in the firm's identity. Although neither ER 7.5 nor its Comment addresses the retention of a retired partner's name in a firm name (the Comment to ER 7.5 does state that names of deceased partners may be included), we do not believe that the Rules require a different result than the Code.

Neither deceased nor retired partners practice law, and as long as there is a continuing line of succession in the firm's identity, there is no reason to allow one and not the other. In other words, if the use of a deceased partner's name in a firm name is not misleading, neither is the use of a retired partner's name. This view is supported by the opinions of other states' ethics committees which have approved the use of a retired partner's name in a firm name under rules identical with, or substantially similar to, Arizona's rules. Connecticut Bar Informal Opinion 87-16 (1/13/88) (ABA/BNA Lawyers' Manual on Professional Conduct, p. 901:2057); North Carolina State Bar Opinion 1 (7/24/86)(op. cit. at 901:6603). Additionally, in an informal opinion, the American Bar Association Committee also concluded that the name of a retired partner may be included in a firm name without violating either ER 7.1 or ER 7.5. A.B.A. Informal Opinion 85-1511 (3/26/85) (ABA/BNA Lawyers' Manual, supra pp. 801:366-801:368).

If a retired partner's name may be retained in the firm name, the next question is what, if any, disclosure must be made regarding the retired partner's status. ER 7.5 is silent on the issue, except to the extent that it states that firm names and letterheads must comply with ER 7.1.

This committee has issued two prior opinions dealing with this issue in the context of a deceased partner. In one, we determined that, under the old Canons (which antedated the Code), a law firm could continue to use the name of a deceased partner in the firm name so long as the firm letterhead listing the names of each of the firm's attorneys indicated that the partner was deceased. Opinion No. 180A (October 27, 1965). After Arizona adopted the Code, we relied on DR 2-102(B) and reaffirmed the conclusions reached in our earlier opinion. See Opinion No. 80-3 (February 1, 1980). In these opinions, the committee concluded only that, on the firm letterhead containing a list of all of the firm's lawyers, a deceased partner should be designated as such. We did not consider whether the use of a firm name, without a listing of the names of all of the firm’s attorneys, required disclosure of the fact that one of the attorneys in the firm name was deceased. However, the ethics committees of other states have addressed the question, and have dealt with both deceased and retired partners.

Those states which have considered the issue have adopted a variety of approaches to it. For example, two states have concluded that the deletion of a retired or deceased partner's name from any listing of individual attorneys' names, whether on the firm's letterhead or otherwise, without any additional disclosure, is sufficient. Connecticut Bar Informal Opinion 87-16 (1/13/88), supra; Maine Bar Opinion 77 (3/4/87) (ABA/BNA Lawyers’ Manual, supra, p. 901:4204). Other states have suggested that there should be some indication on firm stationery and in professional listings that any non-practicing attorney whose name is included in the firm name is either deceased or retired. See Alabama State Bar Opinion 83-162 (11/8/83) (ABA/BNA Lawyer’s Manual, supra, p. 801:1066); Oklahoma Bar Opinion 300 (9/18/81)(op. cit. at 801:7001-801:7002; Michigan State Bar Informal Opinion CI-617 (4/6/81)(op. cit. at 801:4819); Illinois State Bar Opinion 709 ( 11/24/80)(op. cit. at 801:3006 ); Nassau County (N.Y.) Bar Opinion 89-17 ( 5/17/89)(op. cit. at 901:6269). One state has simply stated that a firm should "indicate" on its letterhead that a name partner is retired, without explaining the specific disclosure required or how it is to be made. North Carolina State Bar Opinion 13 (7/24/86), supra. Finally, the ethics opinions of other states are silent on the issue of disclosure. See, e.g., Ohio State Bar Informal Opinion 86-2 (4/30/86) (ABA/BNA Lawyers' Manual, supra, p. 901:6825); Pennsylvania Bar Opinion 87-11 (4/87)(op. cit. at 901:7303); Iowa State Bar Opinion 81-25 (8/25/81)(op. cit. at p. 801:3607); Massachusetts Bar Opinion 81-5 (4/14/81)(op. cit. at 801:4603).

We believe that, in an age in which firms of one hundred or more lawyers are not uncommon, there is nothing misleading about the continuing use of a firm name that includes the name of a former partner who has since retired or is deceased. In other words, we agree with the conclusion reached by the Connecticut and Maine committees; we do not believe that the mere use of such a firm name requires any further disclosure. On the other hand, if a law firm, whether on its letterhead or otherwise, lists the names of the individual attorneys practicing with the firm, we believe that it would be misleading not to indicate that a particular individual who is listed is in fact no longer practicing, whether as a result of retirement or death. See, e.g., Oklahoma Bar Opinion 300 (9/18/81) (op. cit. pp. 801:7001-801:7002); Michigan State Bar Informal Opinion CI-617 (4/6/81), supra.

The next question is whether the fact that a formerly fulltime name partner has retired, but continues to work on a part-time basis, changes either of these conclusions.

If a formerly full-time partner can continue to be listed in a firm's name following retirement without the use of such firm name being misleading, the committee believes that the fact that the attorney continues to advise clients in estate planning and pension matters on a part-time basis would not change that result. In other words, if it is not misleading to use a fully retired attorney's name in a firm name, it is not misleading to use the attorney's name even though he or she continues to practice on a part-time basis.

However, we also believe that the fact that the lawyer continues to practice on a part-time basis would make it appropriate to continue to list the lawyer by name in any listing of individual lawyers, whether on the firm letterhead or in other professional listings. Our research discloses no opinions on this specific issue. We believe that the listing of individual names is generally understood by the public to indicate that the lawyer is actually practicing with the group and is available to render services. While the fact that a lawyer is deceased or fully retired, and not available to render services, should be disclosed in order to avoid misleading the public, we do not think it follows that the fact that a lawyer is only working on a part-time basis requires disclosure on the firm's letterhead or in other professional listings. Indeed, given the myriad of practice arrangements currently available in many law firms (for example, some parents are on a reduced hours program), any effort to identify the variety of such arrangements that may exist in a law firm will only lead to confusion.

Nevertheless, care must be taken that a firm not suggest that a practicing lawyer, whether full-time or part-time, is a partner if, in fact, he or she is not. In the case of a person who was formerly a partner, the level of disclosure required in listings of individual attorneys is dependent upon the particular individual's financial responsibility to third persons. In those cases in which a semi-retired attorney continues as a partner, and is liable to third parties as such, he or she may be listed without additional disclosure. See, e.g., Maryland State Bar Opinion 85-71 (5/23/85) (ABA/BNA Lawyers' Manual, supra, p. 801:4358). However, where the former partner's financial responsibility to third parties has changed, the semi-retired lawyer must be designated as "of counsel" (or in some other appropriate manner) in listings of individual attorneys by name. See e.g., Nassau County (N.Y.) Bar Opinion 89-17 (5/17/89), supra; Vermont Bar Opinion 83-7 (undated) (op. cit. at 801:8607); Maine Bar Opinion 86 (8/31/88) (op. cit. p. 901:4206). Of course, the retired partner's relationship with the law firm must be significant enough to justify his or her "of counsel" status; in other words, he or she must maintain a "substantial and continuing relationship" with the law firm. See our Opinion No. 74-33 (October 21, 1974).

In conclusion, a law firm may continue to use the name of a retired partner in the firm name, as long as there is a continuing line of succession in the firm's identity. In listings Of individual attorneys, the name of a retired name partner must either be deleted or there must be some other indication of the non-practicing partner's status. A semi-retired name partner may continue to be included in the firm's listings of individual attorneys as long as he or she retains financial responsibility to third parties; otherwise, he or she must be designated as "of counsel" (or by some similar designation) if his or her financial responsibility to clients has changed.

©State Bar of Arizona 1991

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[[1] DR 2-102(B) was part of the Code of Professional Responsibility ("the Code"), the predecessor to the current Rules of Professional Conduct ("the Rules").]