May a law firm keep the name of a deceased or retired partner in the firm name?

Plain-English summary

The committee was asked whether a firm may keep the name of one or more deceased or retired members in the firm name. It concluded the practice is permissible, authorized by DR 2-102(B), which allows a firm "if otherwise lawful" to use or continue to include the name of deceased or retired members.

The analysis turned on the phrase "if otherwise lawful." The committee identified two possible readings: that specific statutory or case authority must sanction the practice, or that the practice is sanctioned unless specifically proscribed. Using Black's Law Dictionary's definition of "lawful" as "not contrary to nor forbidden by the law," the committee adopted the second reading, so the practice is allowed unless forbidden. It contrasted the predecessor Canon 33, which looked to "local custom," and concluded that DR 2-102(B) discarded the nebulous local-custom standard in favor of the "if otherwise lawful" one, the effect of which may enlarge the group of firms adopting the practice and permits permanent use rather than a temporary period.

The committee quoted ABA Opinion 267 (1945) for the rationale: all partners contribute to the goodwill attached to the firm name over years, and changing the name each time a name partner dies disturbs that goodwill. It then addressed the limiting concern in the first sentence of DR 2-102(B), that lawyers not practice under misleading firm names. To secure public confidence, a firm retaining a deceased or retired member's name must plainly indicate, wherever appropriate to remove any potential for deception, that such members are deceased or retired; the committee stated such indication on firm stationery and in professional listings such as Martindale-Hubbell is expressly required.

Currency note

This opinion was issued in 1981 under the Code of Professional Responsibility, before Oklahoma adopted the Oklahoma Rules of Professional Conduct (1988) and the later Ethics 2000 revisions. Firm-name rules have since been recast (compare Model Rule 7.1 and the Oklahoma equivalent), and the former DR 2-102 prohibition on trade names has changed. Treat this page as historical context, not current guidance.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 a firm keep a deceased or retired partner's name in the firm name?

A: Yes. The committee concluded DR 2-102(B) permits it "if otherwise lawful," which it read to mean permitted unless specifically forbidden by statute or case law.

Q: Can the name be kept permanently?

A: Yes. The committee concluded the use may be permanent, because the rule discarded the older "local custom" limit that had sometimes restricted use to a temporary period.

Q: Are there conditions?

A: Yes. The firm must avoid a misleading name and, where appropriate, plainly indicate that the named members are deceased or retired, including on stationery and in listings such as Martindale-Hubbell.

Background and rules framework

The opinion interpreted DR 2-102(B) of the Code of Professional Responsibility (a firm may, if otherwise lawful, continue to include the name of deceased or retired members), read against predecessor Canon 33 and ABA Opinion 267 (1945). It predates the Model Rules and made no Model Rule citation.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B) (Code of Professional Responsibility): a firm may, if otherwise lawful, continue to include the name of one or more deceased or retired members, but may not practice under a misleading name.
• Canon 33 (predecessor Canons of Professional Ethics): continued use of a deceased or former partner's name, when permissible by local custom, is not unethical.

Other opinions cited:

• ABA Opinion 267 (1945): goodwill rationale for continuing a firm name after a name partner's death.

See also

• Okla. Bar Ethics Op. 152: Keeping a deceased partner's name in the firm name
• Okla. Bar Ethics Op. 183: Firm name "John Doe and Associates"
• ABA Formal Op. 90-357: Use of the "of counsel" designation

Source

• Landing page: https://www.okbar.org/ethics/ethics-opinion-no-300/

Original opinion text

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

Adopted September 18, 1981

INQUIRY

May a firm use or continue to include in its name, the name or names of one or more deceased or retired members of the firm?

OPINION

This practice is permissible. It is authorized by Disciplinary Rule 2-102(b) of the Code of Professional Responsibility, 5 O.S.1981, Ch. 1, App. 3, DR 2-102(B), in the following manner:

[I]f otherwise lawful, a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm ….

Upon perusal of this passage, it but remains to construe the import of the language, “if otherwise lawful,” to reach a determination of the permissibility of this practice. Two choices present themselves. The first is that specific statutory or case law authority must be found to sanction this practice. The second is that the practice is sanctioned unless specific statutory or case law authority proscribes it. Guidance is lent to the resolution of this dichotomy through the definition of “lawful” as provided by Black’s Law Dictionary, 4th ed. (1957). The inter alia definition of “lawful” most apposite in answering the present inquiry is “not contrary to nor forbidden by the law.”

Substituting the definition for the term “lawful,” the DR 2-102(B) formula, supra, now reads:

[I]f otherwise not contrary to nor forbidden by law, a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm …. (Emphasis supplied).

This reading of the rule then clearly vitiates the viability of the first choice and elevates the second choice to the status of being the applicable construction.

That specific statutory or case law authority is not required is supported by the predecessor of DR 2-102(B), the old “Canons of Professional Ethics No. 33, Partnership-Names,” which looked only to local custom for the permissibility of the practice:

In the selection and use of a firm name, no false, misleading, assumed or trade name should be used. The continued use of the name of a deceased or former partner, when permissible by local custom, is not unethical, but care should be taken so that no imposition or deception is practiced through this use.

The deduction to be arrived at after considering both the old Canon 33 and DR 2-102(B) is that the later pronouncement is intended to discard the somewhat nebulous “local custom” standard in favor of the more readily ascertainable “if otherwise lawful” one. The upshot of this change may be to enlarge as a group the number of firms choosing to adopt this practice, but in no wise should the conclusion be made that its intendment is one of constriction. If local custom restricted the use of the retired or deceased partner’s name to a temporary period, no such restraint is now imposed, so that the name use may be permanent.

The rationale for the rule permitting this practice was stated succinctly in Opinion Number 267 of the Committee on Professional Ethics and Grievances of the American Bar Association (1945):

The continued use of a firm name by one or more surviving partners after the death of a member of the firm whose name is in the firm title is expressly permitted …. the reason for this is that all of the partners have by their joint and several efforts over a period of years contributed to the goodwill attached to the firm name. In the case of a firm having widespread connection, this goodwill is disturbed by a change in firm name every time a name partner dies, and that reflects a loss in some degree of the goodwill to the building up of which the surviving partners have contributed their time, skill and labor through a period of years. To avoid this loss the firm name is continued ….

This rationale remains persuasive today.

One final, albeit important, consideration must be addressed. Precaution must be taken that deception does not result from the adoption of this practice. The full text of the first sentence of DR 2-102(B) is as follows:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or professional association may contain “P.C.” or “P.A.” or similar symbols indicating the nature of the organization, and if otherwise lawful a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of successors. (Emphasis supplied)

Clearly evident is the concern that lawyers not practice under misleading firm names. Therefore, in order to secure the confidence of the public in the integrity of the Bar, any firm which elects to retain as part of its name the name or names of one or more deceased or retired members must plainly indicate, wherever appropriate to abrogate any perceptible potentiality of deception, that such members are indeed deceased or retired, as the case may be. Such indication on firm stationery and in professional listings, such as Martindale-Hubbell, is expressly required.