Can a firm restructuring as a PLLC keep deceased and retired partners' names in its name, and who can be 'of counsel'?

Plain-English summary

"Smith Jones & Brown" has operated as a partnership for decades; the Smith and Jones partners have retired and died, and the remaining partners are John and Jane Brown. The firm wants to restructure as a PLLC and keep the name "Smith Jones & Brown, PLLC." John Jones Jr. is alive and works "of counsel"; Julie Brown wants to join as a member, and Jane Brown wants to move to "of counsel." The firm asks whether the name and these arrangements are permissible.

The committee answers yes on each. Under Rules 7.5 and 7.1, a firm name must not be false or misleading and may imply a partnership only when one exists, but Comment 1 to Rule 7.5 allows deceased partners' names where there has been a continuing succession in the firm's identity (such a name being, strictly, a trade name). Drawing on ISBA Opinions 20-04, 03-02, and 865, the committee lists the conditions for keeping a retired partner's name: the firm takes reasonable steps to reflect the retired status, the firm is a bona fide successor, the use is authorized by contract or law, and the public is not misled. Because the firm has been "Smith Jones & Brown" for decades, the continuing-succession condition is met, and the firm may keep the name after restructuring so long as Smith and Jones are retired or deceased and no longer practicing; the committee says the firm should indicate on its website that they are retired or deceased.

On membership, the committee says Julie and John Brown may be the sole members and Jane Brown may be "of counsel," provided the firm makes clear on its website and marketing that Smith and Jones are retired or deceased and Jane Brown is now "of counsel," and assuming the members satisfy Illinois Supreme Court Rules 721 and 722 (beyond the opinion's scope). On the "of counsel" question for John Jones Jr., the committee restates that the designation requires a close, regular, and continuing relationship (more than a forwarder, occasional consultant, or single-case relationship) and active bar status; if those conditions and accurate public identification are met, he may be "of counsel," and a firm may keep the name of a former partner who becomes "of counsel."

In practice

Under this opinion, a firm restructuring its form may retain long-standing deceased and retired partner names where the firm's identity has continued, as long as it discloses the retired-or-deceased status so the public is not misled. The opinion treats the "of counsel" designation as available only to a lawyer with a close, regular, continuing relationship and active bar status, accurately identified on the firm's letterhead, website, and marketing.

Common questions

Q: Can a firm keep deceased partners' names after changing to a PLLC?

A: Yes, where there has been a continuing succession in the firm's identity. The committee says such a name is a permitted trade name under Rule 7.5 Comment 1, and the firm should show on its website that those partners are deceased or retired.

Q: What conditions apply to keeping a retired partner's name?

A: Per ISBA Opinion 20-04, the firm must take reasonable steps to reflect the retired status, be a bona fide successor, have authorization by contract or law, and not mislead the public.

Q: Who can be "of counsel" to the firm?

A: A lawyer with a close, regular, and continuing relationship (more than a forwarder, occasional consultant, or one-case relationship) and active Illinois bar status, accurately identified to the public.

Background and rules framework

The opinion interprets Illinois Rules of Professional Conduct 7.5 (firm names and letterheads, including the deceased-partner provision in Comment 1 and the 7.5(d) partnership limit) and 7.1 (false or misleading communications), which track Model Rules 7.1 and 7.5. It references Illinois Supreme Court Rules 721 and 722 (practicing as a professional limited liability entity) and relies on prior ISBA Opinions 776, 817, 840, 865, 03-02, 16-04, and 20-04, and ABA Formal Opinion 90-357.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / IL RPC 7.5 (firm names; Comment 1 deceased-partner names; 7.5(d))
• MR 7.1 / IL RPC 7.1 (false or misleading communications)

Court rules:

• Ill. S. Ct. Rules 721, 722 (professional limited liability entities)

Other opinions cited:

• ISBA Opinions 776, 817, 840, 865, 03-02, 16-04, 20-04
• ABA Formal Op. 90-357 (1990) ("of counsel")

See also

• ISBA Ethics Op. 20-04: Named Partner Who Stops Practicing
• NY State Bar Op. 1230: Deceased Attorney's Name on Firm Letterhead
• NY State Bar Op. 622: Successor Firm Name With a Deceased Partner

Source

• Landing page: https://www.isba.org/ethics/opinions/2204