When a partner leaves a Texas firm to start his own practice, can the remaining lawyers keep his name in the firm name if he consents?

Plain-English summary

The opinion addresses two lawyers who practiced as "A & B, LLC." Lawyer A left to open his own practice, signing an agreement that let Lawyer B keep using "A & B, LLC," and Lawyer A now practices as "A, Attorney at Law." Lawyer B continues to use "A & B, LLC" with clients, courts, and the public.

Rule 7.01(a) bars practicing under a firm name containing names other than those of lawyers in the firm, with an exception that lets a firm keep the name of a deceased or retired member. The Committee gives "retire" its ordinary meaning, to withdraw from one's occupation or conclude one's career, and concludes Lawyer A did not retire; he left to keep practicing law independently. The Committee contrasts Opinion 466, where a lawyer actually terminated his practice and only later returned, and the retired-member exception applied.

Because Lawyer A did not retire, the exception does not apply, and continued use of "A & B, LLC" by Lawyer B or his associates violates Rule 7.01(a) and (d). The Committee adds that the consent Lawyer A gave does not change that result, and that using Lawyer A's name while he practices independently is also a false or misleading communication about Lawyer B's services under Rule 7.02(a).

In practice

Under this opinion, and under the Texas rules as they stood at the time, a firm whose named partner leaves to continue practicing on his own may not keep that partner's name in the firm name. The Committee reads Rule 7.01(a)'s exception as limited to deceased or retired members and treats a lawyer who departs to practice independently as neither, so retaining the name violates Rule 7.01(a) and (d) and is a misleading communication under Rule 7.02(a). The opinion states that the departing lawyer's written consent does not cure the violation.

Common questions

Q: A partner left my firm to start his own practice but said we can keep his name. Can we?

A: No. Per Opinion 605, a lawyer who leaves to practice independently is not "retired," so Rule 7.01(a)'s exception for retired members does not apply, and keeping his name violates Rule 7.01(a) and (d).

Q: Does the departing lawyer's consent make it permissible?

A: No. The Committee states expressly that the conclusion is not affected by any consent the departing lawyer may have given.

Q: How is this different from keeping a retired or deceased partner's name?

A: Rule 7.01(a) allows a firm to keep a deceased or retired member's name. The Committee distinguishes Opinion 466, where the lawyer actually terminated his practice (retired) before later returning; here Lawyer A never stopped practicing, so the exception does not apply.

Background and rules framework

The opinion interprets Texas Disciplinary Rule 7.01 (firm names and letterhead), which corresponds to ABA Model Rule 7.5 as it then existed, including the 7.01(a) exception for deceased or retired members and the 7.01(d) bar on holding out a non-partner as a partner. It also applies Rule 7.02(a) (false or misleading communications about a lawyer's services), which corresponds to ABA Model Rule 7.1.

Citations and references

Rules of Professional Conduct:

• MR 7.5 (firm names and letterheads)
• MR 7.1 (communications concerning a lawyer's services)
• Texas Disciplinary Rule 7.01(a) and 7.01(d)
• Texas Disciplinary Rule 7.02(a)

Other opinions cited:

• Texas Professional Ethics Committee Opinion 466 (October 1990): a firm could keep a lawyer's name after the lawyer retired and later returned to practice, provided nothing misled clients or the public about the current relationship

See also

• TX Ethics Op. 617: Out-of-State Trade Name by a Dual-Licensed Lawyer

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-605/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_605.pdf

Original opinion text

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

QUESTION PRESENTED

Under the Texas Disciplinary Rules of Professional Conduct, may the remaining lawyers in a law firm continue to use, in the name of their firm, the name of a lawyer who left the firm to practice independently from the firm and who has consented to the law firm’s continuing use of his name in the firm name?

STATEMENT OF FACTS

Two lawyers, Lawyer A and Lawyer B, practiced law under the firm name “A & B, LLC.” Lawyer A left the firm to open his own law practice and signed an agreement permitting Lawyer B to use the name “A & B, LLC” as the name of Lawyer B’s firm. Lawyer B continues to correspond with existing clients, adverse parties, courts and the public and to sign pleadings using the name “A & B, LLC.” Since leaving the firm, Lawyer A has practiced under the name “A, Attorney at Law.”

DISCUSSION

Rule 7.01 of the Texas Disciplinary Rules of Professional Conduct provides in pertinent part:
“(a) 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 . . . 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. . . . .
... .
(d) A lawyer shall not hold himself or herself out as being a partner, shareholder, or associate with one or more other lawyers unless they are in fact partners, shareholders, or associates.”

In the absence of a definition of a term in the Texas Disciplinary Rules, words are to be given their ordinary meaning. The ordinary and customary meaning of the word “retire” with respect to a lawyer is to “withdraw from one’s position or occupation” or to “conclude one’s working or professional career.” Merriam-Webster’s Collegiate Dictionary (11th ed. 2003). In the facts presented, Lawyer A left his law firm, not to terminate his practice of law, but to continue his law practice independently from the law firm. In any ordinary sense of the word “retire,” Lawyer A did not “retire” and he is not a “retired” member of the firm for purposes of the exception stated in Rule 7.01(a) for “retired members of the firm.” The situation here may be contrasted with the situation considered in Professional Ethics Committee Opinion 466 (October 1990). In Opinion 466, a lawyer terminated his practice of law pursuant to an agreement with his law firm that allowed the law firm to continue to use the lawyer’s name in the firm name and “[a]fter several years” the lawyer determined to return to law practice in his own name. Opinion 466 concluded that, in the circumstances there considered including the fact that the lawyer had “retired” from his law firm, there was no violation of the Texas Disciplinary Rules if the lawyer’s former law firm continued to use the lawyer’s name in the firm name after the lawyer returned to the practice of law, provided that the law firm did not take any action that would mislead clients or the public as to the current relationship between the lawyer and the law firm.

In this case, since Lawyer A did not retire from practicing law, the exception in Rule 7.01(a) for the use of a retired lawyer’s name in a firm name does not apply. Accordingly, the continued use of the name “A & B, LLC” by Lawyer B or other lawyers employed by or associated with Lawyer B is a violation of paragraphs (a) and (d) of Rule 7.01. This conclusion is not affected by any consent that may have been given by Lawyer A. In addition, since Lawyer A continues to practice law independently from Lawyer B’s law firm, the use by Lawyer B and his firm of Lawyer A’s name in the firm name constitutes a false or misleading communication about the legal services of Lawyer B and his firm within the meaning of Rule 7.02(a) of the Texas Disciplinary Rules of Professional Conduct.

CONCLUSION

Under the Texas Disciplinary Rules of Professional Conduct, a lawyer or lawyers remaining in a law firm are not permitted to continue to use in their firm name the name of a lawyer who has left the firm to open his own law practice. This conclusion is not affected by whether or not the lawyer who left the firm has consented to such arrangement.

Tex. Comm. On Professional Ethics, Op. 605 (2011)