Can a law firm keep a founding partner's name in the firm name after that partner leaves to take a nonlegal job or becomes Of Counsel?

Plain-English summary

A founding partner (called Baker) of "Able, Baker and Charlie" is leaving to work as a non-lawyer at a university, where Baker will perform no legal services but will keep a New York law license and consult on an ongoing basis with Able and Charlie about matters Baker had worked on. The firm asked whether it may keep Baker's name in the firm name, and whether the answer changes if Baker becomes "Of Counsel."

The opinion answers that the firm may keep Baker's name in both scenarios. It applies Rule 7.5(b)(1), as amended effective June 24, 2020, which bars practicing under a false, deceptive, or misleading trade name, domain name, or a name misleading as to the identity of the lawyers practicing under it. Comment [2] states it is not misleading for a firm to be designated by the names of all or some current members, or by retired or deceased members where there has been a continuing line of succession. The committee relies on N.Y. State 1207 (2020), which read the amended rule to permit trade names and to allow a firm to keep a retired partner's name, so long as the name is not false, deceptive, or misleading.

Applying that standard, the committee finds there has never been a per se prohibition on keeping a former partner's name, and nothing in the amended rule prevents the firm from keeping Baker's name simply because Baker now works outside the firm as a non-lawyer; the same result holds whether or not Baker becomes Of Counsel. The touchstone is whether keeping the name would be false, deceptive, or misleading, and on these facts the committee saw no basis to conclude it would be.

In practice

Under this opinion, a New York firm may keep a departing partner's name in the firm name when that partner leaves for nonlegal employment or becomes Of Counsel, because there is no per se bar and the amended Rule 7.5(b) turns only on whether the name is false, deceptive, or misleading. Per the opinion, the analysis is fact-specific: the firm must assess whether, on its particular facts, keeping the name would mislead as to the identity of the lawyers practicing under it.

Common questions

Q: Can a firm keep a partner's name after that partner leaves for a nonlegal job?

A: Yes. Per the opinion, there is no per se bar; the firm may keep the name unless particular facts make it false, deceptive, or misleading under Rule 7.5(b).

Q: Does it matter whether the departed partner becomes Of Counsel?

A: No. Per the opinion, the result is the same whether or not the former partner becomes Of Counsel; the test remains whether the name is misleading.

Q: What is the governing standard for keeping the name?

A: Per the opinion, Rule 7.5(b)(1) and Comment [2] permit a firm to be designated by current, retired, or deceased members' names where there is a continuing line of succession, so long as the name is not false, deceptive, or misleading (citing N.Y. State 1207).

Background and rules framework

The opinion interprets Rule 7.5(b)(1), as amended effective June 24, 2020 (false, deceptive, or misleading trade names, domain names, and names misleading as to identity), together with Comment [2] (names of current, retired, or deceased members with continuing succession). This corresponds to ABA Model Rule 7.5.

Citations and references

Rules of Professional Conduct:

• New York Rules of Professional Conduct 7.5(b)(1) and Cmts. [2]-[5]
• ABA Model Rule 7.5 (analogue)

Other opinions cited:

• N.Y. State 1207 (2020): amended Rule 7.5(b), trade names, and retired-partner names

See also

• NY State Bar Op. 1230: Deceased Attorney's Name on Firm Letterhead
• NY State Bar Op. 1233: "and Associates" in a Solo Firm Name
• NY State Bar Op. 1220: Falsely Advertising a Partnership Among Law Firms
• NY State Bar Op. 1235: A Law Firm Operating Under Two Assumed Names

Source

• Landing page: https://nysba.org/ethics-opinion-1217/