After a lawyer who practiced as 'AB & Associates' dies, can the surviving lawyers keep using his name in the firm name if they were not his partners?

Plain-English summary

Before his death, AB practiced with several other lawyers under the name "AB & Associates." The request did not say whether those other lawyers were AB's partners or his employees. After AB died, several survivors formed a partnership and kept operating as "AB & Associates." The Board was asked whether the firm could keep that name, and whether it could instead use a name combining AB's surname with the new partners' names.

The Board answered both questions no. Rule 7.1 bars false, deceptive, or misleading communications, and Rule 7.5(a) bars a firm name or designation that violates Rule 7.1 and prohibits a misleading trade name. The comment to Rule 7.5 permits keeping a deceased member's name only where the firm is a continuing line of succession. Drawing on a series of ABA opinions, the Board explained that this exception depends on an actual partnership having existed between the deceased lawyer and one or more surviving members; absent a prior partnership, use of the deceased lawyer's name by those merely employed by or associated with him is improper.

The Board added two independent grounds. First, the term "associates" itself negates a partnership: "AB & Associates" never conveyed a partnership between AB and the others, so his death cannot now supply that meaning. Second, as used by the new firm, "AB & Associates" may be a prohibited trade name under Rule 7.5(a). The Board concluded it would be improper to continue the "AB & Associates" name or to use AB's name in any other firm name, because none of the survivors had been his partner and the new firm was not a continuation of a firm in which AB was a partner.

Currency note

This opinion was rendered in 1987, before The Mississippi Bar adopted the Mississippi Rules of Professional Conduct (effective June 22, 1994, later amended February 5, 1999), though it quotes Rules 7.1 and 7.5 numbered as in the current rules and also references the former Code of Professional Responsibility (DR 2-102[A], EC 2-11). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Mississippi Rules of Professional Conduct before relying on any specific requirement mentioned here.

Common questions

Q: Can a firm keep a deceased lawyer's name in its name?

A: Per this opinion, only if one or more surviving partners actually practiced with him and the firm is a genuine continuation. Where the survivors were merely associates, the opinion finds continued use of his name improper.

Q: Does the word "associates" affect the analysis?

A: Yes. The opinion reasons that "AB & Associates" negates a partnership and conveys only that AB employed other lawyers, so the survivors had no right to continue using his name after his death.

Q: Why is "AB & Associates" treated as a trade name?

A: The opinion states that, as used by the new firm under these facts, "AB & Associates" may constitute a trade name, which Rule 7.5(a) prohibits because it can mislead the public about the identity and responsibility of those practicing under it.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 7.1 (false, deceptive, or misleading communications, the analog of Model Rule 7.1) and Rule 7.5 (firm names and letterheads, Model Rule 7.5), including the comment's continuing-succession exception for deceased or retired members. It also cites the former Mississippi Code of Professional Responsibility (DR 2-102[A] and EC 2-11) and a line of ABA opinions on firm names and the meaning of "associate."

Citations and references

Rules of Professional Conduct:

• Model Rule 7.1 / Mississippi Rule 7.1: false, deceptive, or misleading communications.
• Model Rule 7.5 / Mississippi Rule 7.5: firm names, letterheads, and the bar on misleading trade names (Rule 7.5(a)).

Other authorities cited:

• Former Mississippi Code of Professional Responsibility, DR 2-102[A] and EC 2-11.
• ABA Opinions 6 (1925), 208 (1940), 318 (1967), 219 (1941), 310 (1963), and 330 (1972), on continuing a deceased partner's name and the meaning of "associate."
• In re Sussman, 241 Ore. 246, 405 P.2d 355 (1965), on the meaning of "associate."

See also

• MS Bar Ethics Op. 181: One Firm Name on Letterhead
• MS Bar Ethics Op. 191: Misleading Branch Office Name
• MS Bar Ethics Op. 198: 'Of Counsel' on Letterhead

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/137/
• Original PDF: https://www.msbar.org/media/1428/35a_et_op_137.pdf

Original opinion text

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

ETHICS OPINION NO. 137

OF THE MISSISSIPPI BAR

RENDERED September 11, 1987

FIRM NAMES - The continued use of a deceased lawyer's name by surviving lawyers with whom he practiced is proper if one or more of the surviving lawyers were partners of the deceased, the new firm is a continuation of the firm in which the deceased practiced, and the use of his name is not unlawful or misleading. Under such circumstances, the deceased partner's name may continue to be used by all successive partners in the firm.

The Board of Commissioners of the Mississippi State Bar has been asked to render an opinion on the following facts:

Prior to the death of AB, he and several other lawyers practiced together under the firm name of "AB & Associates." The request for an ethics opinion does not state whether the other lawyers in the firm were partners or employees of AB. After AB's death, a partnership was formed by several of the surviving lawyers in the firm, and continued to operate under the name of "AB & Associates."

Two questions are presented:

(1) May the firm ethically continue to use the name of "AB & Associates"?

(2) May the firm ethically use a name comprised of the surname of AB and the partners in the new firm (e.g., "B. C, D & E)?

For the reasons stated below, the Board answers both questions in the negative. Rule 7.1 of the Mississippi Rules of Professional Conduct directs a lawyer not to make a "false, deceptive or misleading communication about the lawyer or the lawyer's services." Rule 7.5(a) states in full:

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A lawyer in private practice shall not practice under a trade name or a name that is misleading as to the identity of the lawyer or lawyers practicing under such name.

In pertinent part, the comment to Rule 7.5 states:

If 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. However, the name of a living lawyer who does not have a continuing professional relationship with the lawyer or law firm shall not be included in a list of lawyers on the firm letterhead unless designated "of counsel".

See also former DR 2-102 [A] and Ethical Consideration 2-11 of the Mississippi Code of Professional Responsibility.

It is not uncommon for law firms to continue to use a partner's name after the partner's death. Such use, if otherwise lawful, is approved by Rule 7.5 and the accompanying comment as a limited exception to the requirement that a firm name consist of one or more lawyers in the firm. It is a practice that has prevailed and been approved for many years. See ABA Opinion 6 (1925) and Opinion 208 (1940). That practice has depended on the existence of an actual partnership between the deceased member and one or more of the remaining members of the firm, and the new firm must in fact be a continuation of the firm in which the deceased partner was a member. Under such circumstances, the deceased partner's name may continue to be used by all successive partners in the firm. ABA Opinion 318 (1967). In the absence of a prior partnership, however, use of a deceased lawyer's name by those merely employed by or associated with him is improper.

After observing that the term "associate" is not defined by the Ethical Considerations and Disciplinary Rules of the Code of Professional Responsibility, ABA Opinion 330 (1972) states:

It has been said, "The word 'associate' has a variety of meanings. Principally through custom the word when used on letterheads of law firms has come to be regarded as describing those who are lawyer employees of the firm. Because the word has acquired this special significance in connection with the practice of law the use of the word to describe relationships other than that of employer-employee is likely to be misleading."In re Sussman, 241 Ore. 246, 405 P.2d 355 (1965). ABA Opinion 310 (1963) adds that "associates" may be used "to describe a situation in which the firm or the individual [lawyer] has other lawyers working for them or him who are not partners and who do not generally share in the responsibility and liability for the acts of the firm."

Addressing the propriety of a law list containing the name of "C. F. M. & Associates", ABA Opinion 219 (1941) states:

The use of the word "associates" in conjunction with the name of an individual negatives the existence of a partnership. It implies no more than that the individual practitioner employs law clerks. The associates would obviously have no right to continue to use the name of "C. F. M." after his death.

See also ABA Opinion 310 (1972).

Therefore, it is the opinion of the Board that, if none of the members of the new firm was a partner of AB at the time of his death, the use of AB's name by the new firm, in any manner, is professionally improper.

It is also the opinion of the Board that, in any event, use of the name "AB & Associates" by the new firm is misleading. Regardless of the nature of the actual relationship between AB and the other lawyers prior to his death, the name "AB & Associates" certainly did not convey to the public a partnership relationship between them if one existed. His death cannot now provide that meaning to the name "AB & Associates" for use by the new firm.

Furthermore, as used by the new firm under the circumstances described above, the name "AB & Associates" may constitute a trade name. Trade names are prohibited by Rule 7.5(a) of the Mississippi Rules of Professional Conduct. As noted in part by former Ethical Consideration 2-11:

The name under which a lawyer conducts his practice may be a factor in the selection process. The use of a trade name or an assumed name could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder.

In summary, it would be improper for the new firm to continue to use the name of AB & Associates. It would also be improper to use AB's name in any other firm name because, given the use of the firm name which negatives the existence of a partnership, none of the surviving and succeeding members were partners of AB at the time of his death, the new firm is not a continuation of the firm in which AB was a partner, and the use of AB's name would necessarily mislead the public.