If a partner leaves a firm to become an active associate at another firm but keeps a small interest in the old one, can his name stay in the old firm's name?

Plain-English summary

A father and son had been law partners for several years, with the son holding only a small minimum interest in the partnership. The son expected to join another law firm in an adjoining municipality as an active associate, and wanted to keep his minimum interest in his father's partnership while being associated with the other firm. The question was whether his name could continue with the original firm.

The Committee analyzed the question under Canon 33 of the Canons of Professional Ethics, which bars false, misleading, assumed, or trade names, and reviewed ABA Opinion 318 (1967) and the ABA's new Code of Professional Responsibility, Ethical Consideration EC 2-11. It noted that a firm may retain the name of a deceased or retired partner where the firm is a bona fide successor, the use is authorized by law or contract, and the public is not misled, but that the name of a partner who withdraws from a firm and continues to practice law should be omitted to avoid misleading the public. Because the son would not be active in the original firm yet would be an active associate at another firm, the Committee concluded that his name should be omitted from the original firm's name in order to avoid misleading the public.

Currency note

This opinion was issued in March 1971, before New Jersey's September 13, 1971 adoption of the Disciplinary Rules (Code of Professional Responsibility), so the Committee was applying Canon 33 of the Canons of Professional Ethics, persuaded in part by the ABA's then-new Code. It also predates the 1984 Rules of Professional Conduct and all later revisions, and lawyer-name and advertising rules changed after later case law. The firm-name questions it addressed are now governed by RPC 7.5. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a firm keep a departed partner's name in its firm name?

A: Not where that partner continues to practice law. The Committee held his name should be omitted to avoid misleading the public.

Q: Does keeping a small ownership interest change the result?

A: No. Although the son kept a minimum interest, because he would be an active associate at another firm and not active in the original firm, his name had to be dropped from the original firm name.

Q: How is a deceased or retired partner's name treated differently?

A: The Committee noted a firm may retain a deceased or retired partner's name where it is a bona fide successor, the use is authorized by law or contract, and the public is not misled.

Background and rules framework

The opinion applied Canon 33 of the Canons of Professional Ethics, informed by ABA Opinion 318 (1967) and EC 2-11 of the ABA Code, distinguishing retention of a deceased or retired partner's name from continued use of the name of a partner who leaves but keeps practicing. In current New Jersey terms the analysis falls under RPC 7.5.

Citations and references

Rules of Professional Conduct:

• Canon 33, Canons of Professional Ethics (firm names); EC 2-11, ABA Code of Professional Responsibility; now MR 7.5 and NJ RPC 7.5

Other opinions cited:

• ABA Committee on Professional Ethics, Opinion 318 (1967)

See also

• NJ ACPE Op. 224: A Firm Name in the Name of One Partner
• NJ ACPE Op. 223: Interstate Partnerships and Firm Names
• NJ ACPE Op. 220: A Non-resident "Of Counsel" Lawyer and Division of Fees

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp198-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

94 N.J.L.J. 209, March 25, 1971

OPINION 198

Partnership Name Partner Becomes Associate In Another Firm

A father and son have been law partners for several years, the son having only a small minimum interest in the partnership. The son now expects to join another law firm in an adjoining municipality as an associate and would like to keep his minimum interest in the partnership, and at the same time be associated with the other law firm.

Canons of Professional Ethics, Canon 33, provides: ...In the selection and use of a firm name, no false, misleading, assumed or tradename should be used. ...

American Bar Association, Committee on Professional Ethics, Opinion 318 (1967) reviewed in detail Canon 33. On the questions there reviewed, that opinion allowed the continued use of the name of a deceased partner, the use of the name of a member of the firm who goes into the army or obtains private employment, with the intent of returning to the firm. The opinion cautioned, however, that the facts must be clearly stated, always having in mind the objective that the public should not be misled.

The present inquiry, however, presents an entirely different situation. We are presented with a member of the bar whose name will continue with a firm although he will not be active in that firm. The same attorney will be listed as an associate of another law firm in the adjoining municipality. He will be an active associate.

In the New Code of Professional Responsibility, adopted by the American Bar Association, under Ethical Considerations, EC 2-11, we find: ...For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such a 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. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public. ...

We believe that this reasoning is sound and should govern the inquiry in this case.

It is our opinion that the name of a partner who withdraws from a firm, but continues to practice law in New Jersey, should be omitted from the firm name in order to avoid misleading the public.