Can lawyers who leave a firm use the name of a deceased partner from that old firm in the name of their new firm?

Plain-English summary

The question (PEC 92-17) was whether partners in a new law firm could use the name of a deceased partner of a former firm as part of the new firm's name. In the hypothetical, lawyers A, B, and others practiced as "A & B"; B withdrew but consented to continued use of his name; A died while still a partner. Several partners who had practiced under A's supervision then left "A & B," formed a new partnership, and wanted to practice as "A & X." A's heirs consented to the use of A's name in the new firm.

The Committee analyzed the question under Disciplinary Rule 7.04(a), which bars a misleading firm name but allows a firm, if otherwise lawful, to use or continue to include the name of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession. Reading that rule, the Committee stated that a firm may use a deceased lawyer's name only if the deceased lawyer was either a member of the firm or a member of a predecessor firm in a continuing line of succession.

The Committee concluded the new firm did not qualify. A died before "A & X" was formed and was never a member of it, and the new partnership formed by the departing members of "A & B" was not a successor to "A & B," which continued to exist; "A & B" was therefore not a predecessor firm of "A & X." The Committee added that the heirs' consent and the fact that some founders had practiced in A's section did not change the result: while the heirs' consent might bear on whether a use is "otherwise lawful," it could not validate a use Rule 7.04 does not permit. Using A's name in the new firm would therefore violate Rule 7.04.

Currency note

This opinion was issued in 1993, under the Texas Disciplinary Rules of Professional Conduct that took effect January 1, 1990. Texas did not adopt the ABA's Ethics 2000 revisions; its rules have been amended only piecemeal since, including the comprehensive 2021 revisions adopted by Texas Supreme Court order. 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 Treat this page as historical context, not current guidance.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 a new firm use the name of a deceased lawyer from a firm its founders left?

A: The Committee concluded no. Rule 7.04 permits a deceased lawyer's name only where that lawyer was a member of the firm or of a predecessor firm in a continuing line of succession, and neither was true here.

Q: The departing lawyers came from "A & B." Wasn't that a predecessor firm?

A: The Committee concluded it was not. "A & B" continued to exist after the lawyers left, so the new firm was not a successor in a continuing line of succession, and "A & B" was not a predecessor of "A & X."

Q: Does the deceased partner's family consenting to use of the name change the outcome?

A: The Committee concluded it does not. The heirs' consent might bear on whether a use is "otherwise lawful," but it cannot give validity to a use that Rule 7.04 does not permit.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 7.04(a) (firm names and letterhead; ABA Model Rule 7.5 as it then stood). Rule 7.04(a) bars practicing under a trade name or a name misleading as to the identity of the lawyers, and bars a firm name containing names other than those of lawyers in the firm, with an exception allowing a firm, if otherwise lawful, to use or continue to include the name of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

Citations and references

Rules of Professional Conduct:

• MR 7.5 (firm names and letterhead)
• Texas Disciplinary Rule 7.04(a)

See also

• FL Bar Ethics Op. 00-1: A Retired Partner in the Firm Name
• FL Bar Ethics Op. 65-55: A Firm Name With a Deceased Partner
• CA Op. 1971-27: False Partnership Firm Names
• TX Ethics Op. 617: An Out-of-State Trade Name by a Dual-Licensed Lawyer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-491/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_491.pdf

Original opinion text

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

QUESTION PRESENTED

[PEC 92-17]
Is it proper for partners in a law firm founded by them after withdrawing from another law firm to use the name of a deceased partner in the former firm as part of the name of the new firm?

STATEMENT OF FACTS

A, B and other lawyers form a partnership for the practice of law in the State of Texas under the name "A & B" and practice under that name for a number of years. From time to time, additional partners are admitted to the firm. B withdraws from the practice of law but consents to the further use of his name by the partnership. A dies while a partner in the firm. Several of the partners who had practiced under the supervision of and in the same section with A subsequently withdraw from "A & B," form a new partnership for the practice of law, and wish to use the name "A & X" as the name of their new partnership. A's heirs have granted their consent to the use of A's name in the new partnership.

QUESTION
Are lawyers who have withdrawn as partners in a law firm and have organized a new law firm prohibited from using in the name of their new firm the name of a deceased partner in the firm from which they withdrew?

DISCUSSION

Disciplinary Rule 7.04(a) provides: "A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer of 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 names 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 succession. Nothing herein shall prohibit a married woman from practicing under her maiden name." [Emphasis added]

Rule 7.04 prohibits lawyers from using a firm name that contains the name of a retired or deceased lawyer unless the retired or deceased lawyer was (1) a member of the firm, or (2) a member of a predecessor firm in a continuing line of succession.

Under the facts presented, A died before the formation of the firm "A & X." A was never a member of that new firm. In no sense can the new partnership formed by the withdrawn members of "A & B" be considered a success or "A & B," which continues to exist. "A & B," in which A had been a partner, was not a predecessor firm of "A & X."

The fact that A's heirs have consented to use of his name in the name of the new firm and that some of the founders of the new firm practiced in the same section with A while members of "A & B" is not relevant in view of the provisions of Rule 7.04. Although the consent of A's heirs might be relevant in determining whether the use of A's name is "otherwise lawful," approval by his heirs cannot give validity to a use not permitted by Rule 7.04.

The use of the name of A in the name of the new partnership formed by the lawyers who withdrew from the law firm "A & B" would violate Disciplinary Rule 7.04.

CONCLUSION

The use of the name of A in the name of the new partnership formed by the lawyers who withdrew from the law firm "A & B" would violate Disciplinary Rule 7.04.

Tex. Comm. On Professional Ethics, Op. 491 (1993)