Can a law firm add a salaried lawyer's name to the firm name and hold him out as a partner when he is only an employee?

Plain-English summary

Two partners, "A" and "B," wanted to associate a third member of the bar, "C," on a salary but not as a partner, and to change the firm name to "A, B and C, Attorneys at Law" and continue practicing under that name. They asked whether that was permissible.

The Board of Governors concluded it was not. It adopted the reasoning of the American Bar Association's Committee on Professional Ethics in that committee's Opinion No. 106, which held that it is improper for a group of lawyers to hold themselves out as a partnership when no partnership relation in fact exists and one member employs the others at fixed salaries. The Board quoted the ABA committee's observation that holding a lawyer out as a full member of a partnership when he is merely an employee "dignifies him with a professional position which he has not attained," and that doing so is a misrepresentation to the public in violation of Canon 32, which the Board noted appears as Rule 34 of Oklahoma's Rules of Professional Conduct. The Board also cited the ABA committee's Opinions Nos. 115 and 126, which reached the same conclusion and held that local custom is no justification.

Currency note

This opinion was issued in 1932, decades before Oklahoma replaced its original Rules of Professional Conduct (patterned on the ABA Canons of Professional Ethics) with the Oklahoma Rules of Professional Conduct (adopted 1988) and the later Ethics 2000 revisions. The rule cited here, Rule 34 (drawn from ABA Canon 32), belongs to that superseded canon-era code and does not correspond to the current Oklahoma Rules of Professional Conduct. Treat this page as historical context, not current guidance.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: Could a two-lawyer firm put a salaried associate's name in the firm name and call him a partner in 1932?

A: The opinion concluded no. The Board held that holding out a salaried employee as a full member of the partnership, when no partnership in fact existed, was a misrepresentation to the public and improper under Rule 34.

Q: Did the Board treat this as its own rule or as an adopted standard?

A: The Board adopted the reasoning of the ABA Committee on Professional Ethics, quoting that committee's Opinions Nos. 106, 115, and 126, and agreed that holding out a non-partner as a partner was professionally improper.

Q: Was longstanding local custom a defense?

A: No. The Board quoted the ABA committee's Opinion No. 115 that "local custom, if any, is unavailing as a justification."

Background and rules framework

The opinion applied Rule 34 of the then-current Oklahoma Rules of Professional Conduct, which the Board identified as the local counterpart of ABA Canon 32. That canon directed a lawyer to conduct himself so as to deserve a reputation for fidelity to private trust and public duty as an honest man. The Board treated holding a salaried employee out as a partner as a misrepresentation to the public inconsistent with that standard. Rules of this kind were patterned on the ABA Canons of Professional Ethics in force at the time.

Citations and references

Rules of Professional Conduct:

• Rule 34 (1929 Oklahoma Rules of Professional Conduct), corresponding to ABA Canon 32: a lawyer must so demean himself as to deserve a reputation for fidelity to private trust and public duty as an honest man.

Other opinions cited:

• ABA Committee on Professional Ethics, Opinion No. 106: improper for lawyers to hold themselves out as a partnership when none exists and one employs the others at salary.
• ABA Committee on Professional Ethics, Opinion No. 115: same; local custom is no justification.
• ABA Committee on Professional Ethics, Opinion No. 126: same, where a non-partner's name was used for court appearances and pleadings.

See also

• ABA Formal Op. 94-388: Relationships Among Law Firms
• ABA Formal Op. 90-357: Use of "Of Counsel" Designation
• Okla. Bar Ethics Op. 3: Advertising Brief Services

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-21/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Adopted December 26, 1932

The Board is in receipt of the following request for an opinion:

"'A' and 'B' are partners engaged in the general practice of law. They desire to associate with them another member of the bar, 'C', on a salary but not as a partner. They desire to change the firm name to 'A, B and C, Attorneys at Law and to continue under that name.

Is this permissible?"

In response:

In the opinion of the Board it is not; for reasons well expressed by the Committee on Professional Ethics of the American Bar Association, with which the Board agrees.

In opinion No. 106 of that committee, the syllabus is:

"It is improper for a group of lawyers to hold themselves out as a partnership, when no partnership relation in fact exists, one member of the group employing the others at fixed salaries."

In the opinion it is said:

"It is a well-known fact that ordinarily a lawyer is not taken into a law partnership, even as a junior member, until he has acquired a standing at the bar through practice and experience and demonstration of his professional qualifications and ability.

To hold a lawyer out as a full member of a partnership, who is merely an employee, dignifies him with a professional position which he has not attained.

It is a misrepresentation to the public and a violation of Canon 32 which enjoins upon the lawyer to so demean himself that he will enjoy 'a deserved reputation for fidelity to private trust and public duty, as an honest man'."

NOTE: Canon 32 appears as Rule 34 of the Rules of Professional Conduct.

In opinion No. 115 of that committee it was held that it was improper for attorneys to hold themselves out as partners when in fact they were not. The facts upon which the opinion was predicted held that the holding out had been in effect. The committee said:

"In the opinion of the committee, a proper appreciation of professional responsibility forbids the continuation of such a course of conduct … Local custom, if any, is unavailing as a justification."

The facts upon which the same committee in opinion No. 126 again held that it was improper for lawyers to hold themselves out as partners when in fact they were not, were that A, B, and C entered into an agreement with "D", not a partner, that the firm name of A, B, C, and D was to be used for purposes of court appearances, pleadings and general court practice. The committee, after referring to its opinions Nos. 106 and 115 said:

"Prescinding from the consideration that the facts set forth may result in deception of the court, the committee is of the opinion that the above agreement is professionally improper."