Can a firm keep a former partner's name in the firm name after he leaves to become a company's general counsel?

Plain-English summary

A named partner ("B") in a 25-lawyer firm left to become an officer and general counsel of a closely held corporation in the same city, withdrawing as a partner. B keeps a close social relationship with the firm and refers matters to it but no longer participates in firm matters or draws income from it. The firm wants to keep its existing name (to avoid the cost and confusion of a name change) and asks whether B has "retired" from the practice of law so his name may remain.

The committee holds the name may not be kept. Rule 7.5(b) bars a firm name containing names other than the firm's lawyers, with an exception for deceased or retired members. Under N.Y. State 266 (1972), a retired partner's name may be continued only if he does not practice law independently of the firm. Here B is still actively practicing as the corporation's general counsel, so he has not "retired" within the meaning of Rule 7.5(b); the committee points to 22 NYCRR 118.1(g), which defines "retired" as not practicing law in any respect (other than uncompensated legal services). Because B continues to practice elsewhere in the same geographic area, keeping the firm name is also misleading as to the identity of the lawyers practicing under it. The committee cites out-of-state opinions (North Carolina Formal Op. 20 (2007), Maryland Op. 00-03 (1999), D.C. Op. 277 (1997)) reaching the same result, and notes Rule 8.4 against misrepresentation.

In practice

Under the New York rule as it stood at the time of the opinion, a firm cannot keep a former partner's name in the firm name once that partner leaves and continues to practice law elsewhere, including as a corporation's general counsel; the opinion holds he is not "retired" under Rule 7.5(b), so the retained name is misleading. The facts that B no longer competes with the firm, draws no income, and does not take matters from the public do not change the result, because he is still actively practicing law.

Common questions

Q: Is a partner who becomes a corporation's general counsel "retired" for firm-name purposes?

A: No. The opinion holds that a lawyer still actively practicing as a corporation's general counsel has not "retired" within Rule 7.5(b), citing the regulatory definition of "retired" as not practicing law in any respect.

Q: Does it matter that the former partner no longer competes with or earns from the firm?

A: No. The opinion holds those facts do not save the name, because the former partner is still actively engaged in the practice of law elsewhere, which makes keeping his name in the firm name misleading.

Background and rules framework

The opinion applies Rule 7.5(b) (firm names and the deceased/retired-member exception) and references Rule 8.4 (no misrepresentation), measured against the regulatory definition of "retired" in 22 NYCRR 118.1(g) and the retirement concept in Rule 1.17(a). These correspond to Model Rules 7.5 and 8.4. The analysis follows N.Y. State 266 (1972) and a line of out-of-state opinions.

Citations and references

Rules of Professional Conduct:

• New York Rule 7.5(b) (firm names; deceased/retired-member exception); Model Rule 7.5
• New York Rule 8.4(d) (and Rule 8.4(c) misrepresentation, cited as context); Model Rule 8.4

Statutes and regulations:

• 22 NYCRR 118.1(g) (definition of "retired" attorney)

Other opinions cited:

• N.Y. State 266 (1972): retired partner's name only if not practicing independently of the firm
• North Carolina Formal Op. 20 (2007); Maryland Op. 00-03 (1999); District of Columbia Op. 277 (1997)

See also

• NY State Bar Op. 853: Name partner who becomes in-house counsel
• NY State Bar Op. 861: Name and ownership of a New York law office
• NY State Bar Op. 869: Permissible law firm names

Source

• Landing page: https://nysba.org/ethics-opinion-850/