Can a law firm keep a deceased partner's name in the firm name and letterhead, and must it flag that he is dead?

Plain-English summary

Bar Counsel asked, under Rule 11(c), whether a firm named "A, B, C and D" could keep deceased Attorney C's name in its name and on its letterhead with no indication that C had died, and, if some notation were required, whether the firm would have to list every same-surname deceased former partner with full names and dates.

The Commission gave a three-part answer. First, retaining a deceased partner's name in the firm name, on the letterhead, and in the business title is permissible without any indication that the lawyer is deceased, because doing so is long-standing custom in Maine and other states and so does not imply the partner is still active or otherwise mislead. The Commission tied this to Grievance Commission Opinion No. 13 (which barred keeping the name of a former partner serving as a public official, distinguishing the deceased-partner custom) and to the ABA Model Rules, under which a firm may be designated by the names of deceased members where there has been a continuing succession in the firm's identity. Second, where a letterhead also contains a list of the firm's individual lawyers (implying those listed are in active practice), including a deceased partner in that list without indicating he is deceased would be misleading and impermissible under Rules 3.9(a) and (b); the death can be shown by the dates of birth and death after the name (for example, John Smith (1900-1987)). Third, if a deceased partner is so listed with the required dates, the Bar Rules do not require the firm also to include the names and dates of all other deceased former members who had the same surname.

Currency note

This opinion was issued in 1987, before Maine's replacement of the former Maine Bar Rules with the Maine Rules of Professional Conduct (effective August 1, 2009). 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 Treat this page as historical context, not current guidance.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 firm keep a deceased partner's name in the firm name?

A: The opinion concluded yes; retaining a deceased partner's name in the firm name, letterhead, and business title without noting the death is long-standing custom and is not misleading.

Q: Does a deceased partner's name need a notation if it appears in a list of the firm's lawyers?

A: Yes. The opinion concluded that because such a list implies the listed lawyers are in active practice, the letterhead must indicate the partner is deceased, for example by his dates of birth and death.

Q: Must the firm then list every deceased partner who shared that surname?

A: No. The opinion concluded the Bar Rules do not require listing the names and dates of all other deceased former members with the same surname.

Background and rules framework

The opinion interprets former Maine Bar Rule 3.9(a) and (b) (public communications and firm names that are false, deceptive, or misleading). That standard corresponds to ABA Model Rule 7.5 (firm names and letterheads), which permits a firm to be designated by the names of deceased members where there has been a continuing succession in the firm's identity. The opinion relies on Grievance Commission Opinion No. 13.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 (firm names and letterheads)
• Maine Bar Rule 3.9(a); Rule 3.9(b)

Other opinions cited:

• Maine Grievance Commission Opinion No. 13; ABA/BNA Lawyers' Manual on Professional Conduct (Comment at 01:170)

See also

• Maine Ethics Op. 86: "A and B" Firm Name With an Of-Counsel Lawyer
• ABA Formal Op. 90-357: Use of the "Of Counsel" Designation

Source

• Landing page: https://mebaroverseers.org/attorney_services/opinion.html?id=91383

Original opinion text

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

Issued by the Professional Ethics Commission

Date Issued: March 4, 1987

Questions

Pursuant to Maine Bar Rule 11(c), Bar Counsel has requested an Advisory Opinion from the Commission with respect to the following questions:

Is it a violation of the Maine Bar Rules, e.g., Rule 3.9(a) or (b), for a law firm named A, B, C and D, to retain on its letterhead, as well as within its business title, the name of Attorney C subsequent to C's death, without any description or indication of any kind on the letterhead as to who C was or that he is deceased?

Additionally, if the Commission determines that some mention must be made on the letterhead (or business cards) as to the existence and date of birth and date of death of C, if C's surname is that of several other former deceased partners of the firm, must all of those deceased partners' complete names and respective dates of birth and death also be included on the office letterhead?

Opinion

• Retention of deceased partner's name in firm name on firm's letterhead and in firm's business title.

The practice of retaining a deceased partner's name in a firm name is a matter of long-standing custom in Maine and other states. Since this is a long-established custom, the retention of a deceased partner's name in a firm name does not imply that the former partner is still an active member of the firm. Accordingly, the retention of a deceased partner's name in a firm name on the firm's letterhead or in the firm's business title without indication that the named lawyer is deceased is not deceptive or misleading and is therefore permissible under the Maine Bar Rules.

This conclusion is in accord with Opinion No. 13 of the Grievance Commission. There the Grievance Commission concluded that it was misleading and therefore impermissible for a firm to retain in its firm name the name of a former member of the firm who was then serving as a public official. The Grievance Commission distinguished that situation from the situation involving a deceased partner, noting that in the latter situation, it has been customary in Maine for firms to retain in their firm names the name of a deceased former partner.

This conclusion is also in accord with the A.B.A. Model Rules of Professional Conduct under which a firm is permitted to be designated by the names of deceased partners where there has been a continuing succession in the firm's identity. ABA/BNA Lawyers' Manual on Professional Conduct, Comment at 01:170: "A firm may be designated by . . . the names of deceased members where there has been a continuing succession in the firm's identity . . . ."

• Inclusion of deceased partner's name in list of lawyers on firm letterhead.

Many firm letterheads contain both the name of the firm and a list of lawyers who are members of the firm. Since such a list of lawyers implies that those lawyers are members of the firm who are in active practice, it would be misleading and therefore impermissible under Maine Bar Rules 3.9(a) and (b) to include in such a list the name of a deceased partner unless the letterhead indicates that the lawyer is deceased. That can be done by indicating after the deceased lawyer's name the lawyer's dates of birth and death, e.g., John Smith (1900-1987).

• Names of other deceased partners.

If a firm's letterhead contains a deceased partner's name in the list of lawyers under its firm name on its letterhead, parenthetically indicating, as required, the dates of birth and death of the deceased partner, as discussed above, the Maine Bar Rules do not require that the firm also include on its letterhead the names and the dates of the birth and death of all deceased former members of the firm who had the same surname as the deceased partner whose name is listed on the firm's letterhead.