After a New York firm dissolves into two successor firms, can either or both keep using a deceased founding partner's name in the firm name?

Plain-English summary

The firm "A, B & C" was founded in 1948 and had operated under a name including Lawyer A, who died in 1959. When it dissolved at the end of 1990, its six partners formed two new three-member firms practicing in the same general area. The committee was asked whether either or both new firms could use deceased Lawyer A's name, and, if so, whether the new firm could also list Lawyer A's name and dates of membership separately on its letterhead.

The committee framed the question under DR 2-102(B), which forbids a misleading trade name but lets a firm keep "the name of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession." Earlier opinions had allowed continued use of a deceased partner's name even as other names were added or dropped, on the rationale that all partners contribute to a firm's good will, but none had set criteria for deciding when a new firm is a true successor. The committee supplied that test: before a new firm may claim to be a successor, it must be objectively apparent that there is substantial continuity of membership, clientele, and professional practice between the two firms, weighing factors such as the proportion of the predecessor's partners and lawyers in the new firm, the similarity of client base and of the legal services offered, how long the new firm's lawyers were partners in the predecessor, whether they were name partners, and whether the new firm practices at the same location. The technical form of the separation (a "dissolution" forming two firms versus a "withdrawal" of partners) also bears on the lawyers' own perception of successor status. No single factor is dispositive.

The committee held it could not decide on the facts presented whether Firm 1 or Firm 2 qualified as a successor; the members must make that determination themselves. But it concluded that both firms cannot use Lawyer A's name. Where two firms practicing in the same general area each used the same deceased member's name, the name would be fragmented and the public misled, contrary to DR 2-102(B); if one firm claimed successor status it would necessarily be asserting that the other could not. The committee added that, even for a bona fide successor, EC 2-11 requires that use of the deceased lawyer's name be authorized by law or by contract and not otherwise misleading, and it encouraged firms to address the disposition of deceased partners' names in their partnership agreements. If a single firm properly concludes it is the successor, it may also list Lawyer A's name and dates of membership separately on its letterhead.

Currency note

This opinion was issued in 1991, under New York's former Code of Professional Responsibility, which New York replaced with the Rules of Professional Conduct in 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 two successor firms from the same dissolved firm both keep the deceased founder's name?

A: No. The committee held that where two firms practicing in the same general area each used the same deceased member's name, the use would be inherently misleading and fragment the name, so at most one of them may use it.

Q: How does a new firm decide whether it qualifies as a successor?

A: The committee said it must be objectively apparent that there is substantial continuity of membership, clientele, and professional practice with the predecessor firm, weighing factors like the share of the predecessor's lawyers in the new firm, similarity of client base and services, length of prior partnership, name-partner status, and shared location. The members must make that factual judgment themselves.

Q: What else must the successor firm satisfy before using the name?

A: Under EC 2-11, use of a deceased lawyer's name must be authorized by law or by contract and must not be misleading in any other way. The committee encouraged firms to address the issue in their partnership agreements.

Q: May the successor firm list the deceased partner's name separately on its letterhead?

A: Yes. If a firm properly concludes it is the successor and may use Lawyer A's name, the committee said it would also be proper to list Lawyer A's name and dates of membership separately on the firm letterhead.

Background and rules framework

The opinion interpreted DR 2-102(B) (a lawyer may not practice under a misleading firm or trade name, but may keep the name of a deceased or retired member or of a predecessor firm in a continuing line of succession) together with EC 2-11 (use of a deceased or retired partner's name is proper only for a bona fide successor, where authorized by law or contract, and where the public is not misled). The closest Model Rule analogues are Rule 7.5 (firm names and letterhead) and Rule 7.1 (the bar on false or misleading communications about a lawyer's services).

Citations and references

Rules of Professional Conduct:

• MR 7.5 (firm names and letterheads)
• MR 7.1 (false or misleading communications about a lawyer's services)
• NY DR 2-102(B); EC 2-11

Other opinions cited:

• N.Y. State 2 (1964); N.Y. State 45 (1967); N.Y. State 279 (1973): continued use of a deceased partner's name in a firm name
• ABA Formal Op. 258 (1943); ABA Formal Op. 318 (1967); ABA Formal Op. 267 (1945): successor-firm and deceased-partner naming
• N.Y. City 725 (1948): successor status is a question of fact
• Illinois Op. 89-6 (1989): no continuing line of succession on the facts presented

See also

• NY State Bar Op. 637: Letterhead listing a former judgeship and out-of-state admissions
• NY State Bar Op. 640: Paralegal job titles on a firm's staff

Source

• Landing page: https://nysba.org/opinion-622/