Can lawyers who take over a deceased attorney's practice keep her name in the firm name if they were never her partners?

Plain-English summary

The committee addressed a lawyer and an associate who planned to open a practice in offices formerly occupied by a now-deceased attorney. The heirs, hoping the practice would remain identified with the deceased attorney, asked the new lawyers to keep her name in the firm name. The committee answered no.

The committee read DR 2-102(B), which permits a firm to continue including in its name the name of a deceased or retired member of the firm or of a predecessor firm "in a continuing line of succession." The key word was "continuing." Here there was no continuing line of succession; the new firm would be only a successor to the former practice, and there had never been a true partnership among the lawyers, as DR 2-102(C) requires before lawyers may hold themselves out as partners. The committee distinguished KBA Opinion E-11, where an actual partnership had existed between the deceased lawyer and one of the succeeding partners.

The committee concluded that the deceased attorney's name could not be included in the firm name or continued in the telephone book. It added, relying on ABA Formal Opinion 266 and Informal Opinion 648, that the new lawyers could still take proper steps to protect the deceased attorney's clients' immediate interests and to advise those clients that their files were available, provided they did not solicit continuation of the matters. Any announcement of the new association had to comply with DR 2-102(A)(2): simple in form, not a veiled bid for employment, and sent only to those whose relationship made their interest reasonable to suppose.

Currency note

This opinion was issued in 1974 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules, including the rules on firm names and advertising. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can lawyers keep a deceased attorney's name in the firm name if they never practiced with her?

A: No. The committee held that DR 2-102(B) allows a deceased member's name to continue only in a continuing line of succession from a true partnership; lawyers who merely succeed to the practice may not use the name.

Q: Why did the word "continuing" matter?

A: The committee read DR 2-102(B) to require a continuing line of succession. Because the new lawyers were only successors to the former practice and had never been partners with the deceased attorney, there was no such continuing line.

Q: How is this different from KBA Opinion E-11?

A: The committee distinguished E-11 because there an actual partnership had existed between the deceased attorney and one of the succeeding partners; here no partnership ever existed.

Q: What could the new lawyers do for the deceased attorney's former clients?

A: Per ABA Formal Opinion 266 and Informal Opinion 648, the committee said they could take steps to protect clients' immediate interests and advise them their files were available, but could not solicit continuation of those matters, and any announcement had to comply with DR 2-102(A)(2).

Background and rules framework

The opinion applied the former Code of Professional Responsibility: DR 2-102(B) (use of a deceased or retired member's name only in a continuing line of succession), DR 2-102(C) (no holding out as partners absent an actual partnership), and DR 2-102(A)(2) (permissible professional announcement cards). The modern analogs are Model Rule 7.5 (firm names and letterheads) and Model Rule 7.1 (prohibition on false or misleading communications about a lawyer's services).

Citations and references

Rules of Professional Conduct:

• DR 2-102(B) (deceased or retired member's name in a continuing line of succession); modern analog Model Rule 7.5
• DR 2-102(C) (no holding out as partners absent an actual partnership)
• DR 2-102(A)(2) (professional announcement cards); modern analog Model Rule 7.1

Other opinions cited:

• KBA Opinion E-11 (distinguished: an actual partnership existed there)
• ABA Formal Opinion 266 (June 2, 1945) and ABA Informal Opinion 648 (steps to protect a deceased lawyer's clients)
• ABA Informal Opinion A-146 (announcements must not be veiled bids for employment)

See also

• KBA Ethics Op. E-84: Public Office on Private-Practice Letterhead
• KBA Ethics Op. E-138: Public Office on Letterhead
• KBA Ethics Op. E-249: Law Firm Newspaper Announcements

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-083.pdf

Original opinion text

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

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-83
Issued: January 1974

This opinion was decided under the Code of Professional Responsibility, which was in effect from 1971 to 1990. Lawyers should consult the current version of the Rules of Professional Conduct and Comments, SCR 3.130 (available at http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising Commission Regulations, before relying on this opinion.

Question:

May lawyers continue use of the name of a deceased attorney whose practice has been assumed by the lawyers when in fact no partnership agreement ever existed?

Answer:

No.

Reference:

DR 2-102

OPINION

A recent inquiry by a Kentucky attorney poses a very precise and often raised question for the Ethics Committee to decide:

Myself and an associate are intending to establish a law practice in offices formerly occupied by an attorney who is now deceased. The heirs, in their desire to see continued a law practice which might be identified with the deceased attorney, have asked that we retain her name in the title of our proposed firm

Canon 33 of the older Canons of Professional Ethics stated: "In the selection and use of a firm name, no false, misleading, assumed, or trade name shall be used."

And, the later and current Code of Professional Responsibility states in DR 2-102(B):

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more lawyers in the firm and is otherwise lawful, a firm may use as, or continue to include in its name the name 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 key to the Disciplinary Rule lies in the word "continuing." In the situation we are presented with there is no continuing line of succession. Rather, the new law firm as proposed will be only a successor to the former, and there has never been a true partnership relation among the lawyers as is required by DR 2-102(C).

A lawyer shall not hold himself out as having a partnership with one or more lawyers unless they are in fact partners.

KBA Opinion E-11 briefly touched upon a matter similar to the one at hand, but is distinguishable in the fact that in that situation there actually existed a partnership between the deceased and one of the succeeding partners of the firm.

As a result of the Canons and the Code, it would seem that the name of the deceased attorney may not be included in the firm name nor continued in the telephone book.

ABA Formal Opinion 266 (dated June 2, 1945) and Informal Opinion 648 lend aid in determining just what course of action is to be followed in this set of circumstances.

It is entirely proper for the professional colleagues of a deceased lawyer, and with the approval of the widow or personal representatives, to take such steps as are necessary to protect the immediate interests of the clients, and to advise such clients that they are doing so, making it clear to the clients that the papers of the latter will be turned over promptly to any other attorney whom the client may desire to designate. They may advise all former clients that their files have been left in their custody and where they may be found. They may not solicit continuation of those matters with them.

If announcements are to be sent they must be proper according to DR 2-102(A)(2):

A brief professional announcement card stating new or change associations or addresses, change of firm name, or similar matters pertaining to the professional office of a lawyer or law firm which may be mailed to lawyers, clients, former clients, personal friends and relatives.

The simpler and more customary the form, content and appearance of the announcement the better. Those announcements which may be construed as veiled bids for employment are prohibited (ABA Informal Opinion A-146). A second qualification of announcements is that they be sent only to those laymen whose personal relationship would make it reasonable to suppose the recipient would be interested in the content of the announcement (ABA Informal Opinion A-146).

Note to Reader

This ethics opinion has been formally adopted by the Board of Governors of the Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor rule). The Rule provides that formal opinions are advisory only.