Can a New York firm open a same-named firm in another state, let a name partner be of counsel to one firm while a name partner in the other, and keep his name in the New York firm's name?
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This page answers the general question as of 1995. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.
Plain-English summary
The New York partnership "A B & C (NY)" took its name from three of its partners. Partner C, who lived in Washington, D.C., proposed (for tax reasons) to "retire" from the New York firm, become "of counsel" to it, and become a partner in a newly formed Washington firm, "A B & C (DC)," consisting of Partner C and all the partners of the New York firm. The committee was asked whether the partners could form the same-named D.C. firm, whether Partner C could be "of counsel" to one firm while a name partner in the other, and whether the New York firm could retain his name.
The committee answered yes to each, subject to caveats. It noted it is not per se improper for attorneys to be members of two partnerships in two jurisdictions with overlapping membership, and that, although unusual, a lawyer may serve as both a partner in one firm and "of counsel" to another where there is a close, regular, personal relationship; the likely close affiliation between the two firms made this one of those unusual circumstances. Under DR 2-102(B), the firms could share a name and keep Partner C's name only if the arrangement was not intended to mislead and did not have that effect. The committee found the D.C. name accurate (all three named partners would be members) and the retention of Partner C's name in the New York firm permissible because he would remain "of counsel," noting that a firm's name need not consist exclusively of partners. The committee distinguished the usual rule that naming a nominally "retired" partner who still practices elsewhere tends to mislead, observing that Partner C's continuing close relationship with the New York firm made misleading the public unlikely. It cautioned that, under DR 2-102(D), separate letterheads for each firm would almost certainly be required to prevent the appearance of a single partnership.
Currency note
This opinion was issued in 1995, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 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 the partners of a New York firm form a same-named firm in another state?
A: The opinion concluded yes, provided the arrangement is not intended to mislead the public and does not have that effect; here, where all three named partners would belong to the new firm, the shared name was accurate.
Q: Can a lawyer be "of counsel" to one firm while a name partner in another?
A: Per the opinion, yes in the "unusual circumstances" where the lawyer maintains a close, regular, personal relationship with the first firm; the likely close affiliation between the two firms supported the dual designation here.
Q: Can a firm keep a retired partner's name if he now practices in the affiliated firm?
A: The committee concluded yes, because Partner C would remain "of counsel" to the New York firm and a firm's name need not consist only of current partners, so long as the public is not misled.
Q: Do the two firms need separate letterheads?
A: The committee stated that, under DR 2-102(D), separate letterheads for each firm would almost certainly be required to prevent the appearance of a partnership where none exists.
Background and rules framework
The opinion applied New York Code DR 2-102(B) (firm names that are not misleading as to the identity of the lawyers practicing under them) and DR 2-102(D) (letterhead and permissible listings), together with the "of counsel" requirement of a continuing, close, regular, personal relationship. The analysis corresponds to ABA Model Rule 7.5 (firm names and communications), now reflected in New York Rule of Professional Conduct 7.5.
Citations and references
Rules of Professional Conduct:
- New York Code DR 2-102(B), DR 2-102(D) (applied in the opinion)
- MR 7.5 (firm names and letterhead)
Other opinions cited:
- N.Y. City 1995-8: scope of "of counsel" and "associated"/"affiliated" designations
- ABA Formal Op. 90-357: "of counsel" requires a close, regular, personal relationship
- N.Y. City 82-33, 81-54, 81-104; Nassau County 91-22, 92-4; Iowa 91-5 (firm names and retired-partner naming)
See also
- NYC Bar Formal Op. 1995-8: Affiliations and "Of Counsel" Designations
- ISBA Ethics Op. 709: Keeping a Deceased Member's Name in the Firm Name
- ISBA Ethics Op. 736: Similar Law Firm and Lawyer Names
Source
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