After a partner is disbarred, may his firm keep his name in the firm name because his wife remains a partner, represent him and his businesses, and take clients he sends them?

Plain-English summary

A six-partner firm asked the Committee about its relationship with a former partner who had been disbarred and whose wife, also a partner, intended to continue practicing in the firm. The disbarred lawyer planned to pursue business interests requiring legal work in both the private sector (such as drafting contracts) and the public sector (such as applications and hearings before government bodies). He would not be paid for recommending the firm, but his contacts were expected to use the firm from time to time on their own. The firm asked whether it could keep the partnership with his wife, keep his surname in the firm name to identify her interest, and represent the disbarred lawyer, his entities, and persons introduced by his activities.

On the partnership, the Committee answered that the firm could maintain a partnership with the disbarred lawyer's wife. On the firm name, it held the answer depended on whether the wife's name was being used to mislead the public about the continuing presence of the disbarred partner; under DR 2-102(B), the wife must be a partner in fact rather than for convenience, and the letterhead and other listings must clearly delineate her as the partner named in the firm name. If the effect was to mislead the public into believing the disbarred attorney remained associated, the name was improper, and the Committee declined to make that factual finding.

On representing the disbarred lawyer, the Committee found it would not be inappropriate for the firm to represent him or his corporations and partnerships, provided great care was taken to avoid any impression of office sharing or any continuing relationship other than attorney and client, and it noted the inquiry did not state where the disbarred attorney would maintain offices, a point with an important bearing on propriety. On referred clients, the Committee held the firm should not represent clients introduced by the disbarred partner, relying on Opinion 17 and former Canon 27 (improper to procure business through "touters"), reinforced where the referring party is a disbarred attorney whose wife would share in the fees. It concluded there was nothing improper in representing the disbarred attorney in his personal and business affairs provided he maintains a bona fide separate office and his presence on the firm's premises is infrequent and limited to his own legal business, but that the firm should not accept references from him, the more so where the firm name includes his name.

Currency note

This opinion was issued in 1974, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. The firm-name and misleading-communication questions are now governed by RPC 7.1 and RPC 7.5, referral-source limits by RPC 7.2, and association with a disbarred lawyer by RPC 5.5. 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 disbarred lawyer's surname in the firm name?

A: Under this opinion, only if it does not mislead the public into believing he remains associated; the surviving name must belong to a partner in fact (here, his wife), clearly identified as such on the letterhead.

Q: Can the firm represent the disbarred lawyer and his companies?

A: Yes, with safeguards. The Committee found it permissible provided great care is taken to avoid any impression of office sharing or a continuing relationship beyond attorney and client, and the disbarred lawyer keeps a bona fide separate office.

Q: Can the firm take clients the disbarred lawyer sends to it?

A: No. The Committee held the firm should not accept clients introduced or referred by the disbarred partner, citing Canon 27's bar on procuring business through intermediaries, especially where his wife would share in the fees.

Background and rules framework

The opinion applied DR 2-102(B) (misleading firm names) and former Canon 27 (procuring business through intermediaries), with attention to the firm's association with a disbarred lawyer. In current New Jersey terms, the firm-name issue is governed by RPC 7.1 and RPC 7.5, the referral issue by RPC 7.2, and the disbarred-lawyer association by RPC 5.5.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B) (misleading firm name), as in effect 1974; now MR 7.1 / NJ RPC 7.1 and MR 7.5 / NJ RPC 7.5
• Former Canon 27 (procuring business through "touters"); referral-source limits now MR 7.2 / NJ RPC 7.2
• Association with a disbarred lawyer; now MR 5.5 / NJ RPC 5.5

Other opinions cited:

• NJ ACPE Opinion 17, 87 N.J.L.J. 113 (1964); Opinion 213, 94 N.J.L.J. 585 (1971); Opinion 215, 94 N.J.L.J. 600 (1971)
• ABA Informal Opinion 1079 (1968) (referrals from a suspended attorney)
• N.Y. County Lawyers Association Opinion 117 (1917)

See also

• NJ ACPE Op. 305: A Foreign Attorney's Legal Title on a Bank's Letterhead
• NJ ACPE Op. 307: A Foreign Attorney in a Firm Name and Management Specialty
• NJ ACPE Op. 330: Office Letterhead, Associates, and Administrator

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp279-1.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.

97 N.J.L.J. 1973, February 28, 1974

OPINION 279

Disbarred Former Partner - Husband of Partner - As Client - Referring Cases

An attorney has requested an opinion based upon the following circumstances. He is a member of a firm which has heretofore consisted of six partners, employing three associates. A former partner who is the husband of a present partner has been disbarred by the Supreme Court of New Jersey. The disbarred attorney's wife intends to continue the practice of law as a member of the partnership. The disbarred attorney intends to pursue various business interests, which require the services of an attorney in both the private sector, such as the drafting of contracts; and activity in the public sector, such as applications to, negotiations with and hearings before State and municipal governmental and administrative bodies. The disbarred attorney will not be asked to recommend or be paid for recommending, employment of his former partnership by any person with whom he may have business or personal contacts. Nevertheless, it is expected that, from time to time, those contacts will make use of the services of the disbarred lawyer's former firm as a matter of their own choosing.

The inquirer asks: May the members of the firm maintain their partnership association with the disbarred lawyer's wife, who practices under her married name? May the firm name continue to contain the surname of the disbarred attorney, in order to identify the present interest of his wife? May the firm as a whole, or the disbarred lawyer's wife as a member of the firm, represent any of the following persons if, in each case, the fees charged will constitute income to the firm in which the disbarred attorney's wife will share: the disbarred attorney, the corporations and partnerships of which the disbarred attorney is a shareholder or partner, and persons who may be introduced in the future to the firm as the result of the disbarred attorney's activities?

In reply to the first question, of course the firm may under normal circumstances maintain a partnership association with the disbarred lawyer's wife.

The answer to the second question depends on whether the purpose or effect of the wife's name is to mislead the public as to the continuing presence of the disbarred partner. DR 2-102(B) states:

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 continuing names other than those of one or more of the lawyers in the firm... .

Accordingly, it is first required that the wife of the former partner be a partner in fact and not a partner for convenience. Secondly, if she is a partner in fact, the letterhead and all other permissible listings of the firm name must clearly delineate her as the partner in fact named in the firm name. New Jersey Advisory Committee on Professional Ethics, Opinion 215, 94 N.J.L.J. 600 (1971). If the effect of the use of the name in the firm name, however, is to mislead the public into believing that the disbarred attorney continues to be associated with the firm, it is improper. It is not within the province of this Committee to make a factual finding on this point in this opinion.

As to the third question, we believe it would not be inappropriate for the firm to represent the disbarred attorney, or corporations or partnerships involving the disbarred attorney provided great care is taken to avoid any impression of office sharing or any continuing relationship of the firm with the disbarred attorney other than as attorney client. In N.J. Advisory Committee on Professional Ethics, Opinion 213, 94 N.J.L.J. 585 (1971), we reviewed an inquiry covering an association with a disbarred attorney and held there that creation of an impression of sharing an office with a disbarred attorney was prohibited. The subject inquiry fails to state where the disbarred attorney will maintain offices to conduct his proposed activities and this has an important though not dispositive bearing on the propriety of the proposed arrangement.

In our opinion, however, the firm should not represent clients introduced to the firm by the disbarred partner. In N.J. Advisory Committee on Professional Ethics, Opinion 17, 87 N.J.L.J. 113 (1964), we held that a firm of attorneys could not accept the representation of clients referred by an intermediary corporation whose principal was the spouse of a partner in the firm. We there cited old Canons of Professional Ethics, Canon 27 which declared it improper for an attorney "to procure business by indirection through touters of any kind" and noted that "the circumstances that the attorney here is closely related to the principals [referring the work] would seem to furnish a further instance of unprofessional conduct, since it might operate to lessen the appearance of independence of the attorney from such principal." This conclusion of impropriety is reinforced where the referring party is a disbarred attorney whose wife would share in fees from cases referred.

In Informal Opinion 1079 of the Standing Committee on Professional Ethics of the American Bar Association (1968) it was held to be improper for an attorney to accept referrals from a suspended attorney. See also Opinion 117 of the New York County Lawyers Association (1917), holding that an attorney should not cooperate in a plan of promotion of his practice by his father. Accordingly, we hold that there is nothing improper or unethical about representing the disbarred attorney in his personal and business affairs provided that the disbarred attorney maintains a bona fide business office separate from the inquiring law firm and the presence of the disbarred attorney on the firm's premises is infrequent and limited to those occasions required for the transaction of his personal legal business actually being performed. We believe that it would not accord with the best standards and traditions of the legal profession if the firm were to accept references from the disbarred attorney whose wife is currently a partner in the firm, and this would be more emphatically the case where the firm name includes the disbarred attorney's name - even though it is also that of an existing partner.