Re:
Continuing to use, as part of a firm name, the name of a partner who withdraws from the firm but continues to practice law.

Digest:
The name of a partner who withdraws from a firm but continues to practice law may be included as part of the firm name, at least as long as the withdrawing partner maintains a continuing “Of Counsel” relationship with the firm.

Code Provisions:
Disciplinary Rule 2-102 (A) (4)
Disciplinary Rule 2-102 (B)
Disciplinary Rule 2-102 (C)
Disciplinary Rule 2-102 (D)
Ethical Consideration 2-11

Described Facts:
Inquiring counsel is an attorney in a two lawyer partnership in which the firm name consists of the names of the two partners. Inquiring counsel and his partner are contemplating the possibili ty of amicably dissol ving the partnership. Inquiring counsel’s partner has indicated that he would have no objection to inquiring counsel continuing to maintain the firm name after dissolution of the partnership. Inquiring counsel and his current partner would continue to work closely together after dissolution, although not as partners, and the former partner would be shown on the letterhead with the status of “Of Counsel.”

Inquiry:
May the name of a partner who withdraws from a firm but continues to practice law while maintaining an “Of counsel” relationship with the firm continue to be included in the firm name.

Determination:
The name of a partner who withdraws from a firm but continues to practice law may be included as part of the firm name, at least as long as the withdrawing partner maintains a continuing “Of Counsel” relationship with the firm.

Analysis:
DR 2-102(B) sets forth the rule with respect to law firm names 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 I except that the name of a professional corporation may contain “P.C.” or such symbols permitted by law, 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…. A lawyer who assumes a judicial, legislative or public executive or administrative post or office shall not permit his or her name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which the lawyer is not actively and regularly practicing law as a member of the firm. . . .”

DR 2-102 (D) supplements DR 2-102 (B) by prohibiting multistate partnerships unless all listings in the firm letterhead “make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however. the same firm name may be used in each jurisdiction” (emphasis added).

The basic policy underlying the position of DR 2-102(B) with respect to law firm names is set forth in EC 2-11, which determines that the name of a law firm constitutes. an implicit representation of the identity, responsibility and status of those who are therein named:

“The name under which a lawyer practices may be a factor in the selection process. The use of a trade name or an assumed name could mislead non-lawyers concerning the identity, responsibility, and status of those practicing thereunder. Accordingly, a lawyer in private practice should practice only under a designation containing the lawyers own name, the name of an employing lawyer, the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional corporation for the practice of law, which should be clearly designated as such.”

The policy underlying the specific exception provided in DR 2-102(B) for the use of retired or deceased partners’ names is set forth in the subsequent portion of EC 2-11:

“For many years some law firms have used a firm name retaining one or more names of deceased or retired partners and such practice is not improper if the firm is a bona fide successor of a firm in which the deceased or retired person was a member, if the use of the name is authorized by law or by contract, and if the public is not misled thereby. However, the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public.”

As held by the New York Court of Appeals, “[t]he purpose of the prohibition against trade names embodied in DR 2-102(B) is to prevent the public from being deceived about the identity, responsibility and status of those who use the name [citations omitted]”. Matter of Von Wiegen, 63 N.Y.2d 163, 176 (1984) (holding that use in a flyer of the motto “The Country Lawyer” was not deceptive because the lawyer’s name was inserted apart from the motto). However, in New York Criminal and Civil Courts Bar Association v. Jacoby, 61 N.Y.2d 130 (1984), the Court rejected an attempt made pursuant to Judiciary Law §§476-a and 478 to bar the law firm of Jacoby & Meyers from practicing law under that name in New York, on the ground that neither Jacoby nor Meyers was admitted to practice law in New York (both being admitted solely in California).1 The Court, in direct contradiction of the Code of Professional Responsibility, held that a law firm name does not constitute any implicit representation regarding those therein named, but, rather, is merely an ” insti tutional description” -something which the Committee observes is very akin to a “trade name”:

“We … conclude as a matter of law that use of a firm name comprised of surnames, without more. does not constitute any holding out that there are individual partners bearing those surnames who are admitted to practice in New York. or indeed that there are partners in the firm who bear such surnames, wherever admitted. Plaintiff’s attempt to distinguish instances (of which there are many in New York State, particularly in New York City) of the use of firm names made up of surnames of partners one or more of whom are deceased is not persuasive. Its assertion is that the client’s both actual and potential, of such latter firms, are sufficiently sophisticated to understand that the use of such firm names constitutes no representation that there is any member of the firm who bears one of the surnames that appear on the firm name. We find no significant difference between the use in a firm name of the surname of a deceased partner and the surname of a partner not practicing in New York. In both instances the firm name is an institutional description and its use constitutes no representation that anyone bearing a surname corresponding to the names in the firm title is available to render professional services.” 61 N.Y.2d at 135 (emphasis added).

The Court then went on to note that the provision of DR 2-102(0) of the Code of Professional Responsibility, permitting the use of a single firm name in all jurisdictions for a mUlti-state firm, “in this instance • • • fairly states the appropriate application to mUlti-state law firms of the provisions of section 478 of the Judiciary Law.” 61 N.Y.2d at 135-136.

The Code of Professional Responsibility is itself ambiguous with respect to whether or not an individual must be a present, deceased, or retired member of the firm in order to have his surname utilized in the firm name. DR 2-102 (B) first speaks of allowing use of the names of “one or more of the lawyers in the firm” (emphasis added), not limi ting the usage to “members.” However, DR 2-102(B) subsequently allows the use of the names of deceased or retired “members” of the firm, and couches the prohibition against utilization of the names of lawyers assuming public positions to those time periods during which the lawyer is not a “member” of the firm. In opinion #680 (1990), the Committee on Professional Ethics of the New York County Lawyers’ Association prohibited the use of “a firm name that looks like a partnership name” (emphasis added) by lawyers who “are not partners and do not wish to become partners “Certainly this latter reading appears more consonant with the premise that a firm name constitutes an implicit “holding out”, with implications not only as to the identity of the attorneys practicing thereunder, but as to their “responsibility and status.” Matter of Von Wiegen, supra, 63 N. Y. 2d at 176; EC 2-11. Yet the premise that a firm name consti tutes an implicit “holding out” as to either identity or responsibility and status has been expressly rejected by the Court of Appeals in Jacoby, supra, 61 N.Y.2d at 135. 2

In Opinion #89-17, this committee determined that where on~ of the two partners in a firm utilizing a name consisting of the names of the two partners withdrew from the partnership, but continued to practice as “Of Counsel” to the firm, inquiring counsel could continue to use the same firm name. In Opinion #89- 17, the withdrawing partner was actually “retiring,” and was going to continue practicing law only on a part-time basis in his capacity as “Of Counsel” to the firm. The instant factual situation should be no different than that considered in opinion #89-17. Although the instant situation contemplates the “Of Counsel” individual maintaining a separate practice, and although EC 2-11 suggests that “the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public,” EC 2-11 contemplates a situation in which the withdrawing partner continues to practice only separately from the firm, having severed entirely any continuing relationship with the firm, thus raising the possibility (if the Jacoby holding is ignored) that potential clients of the firm will be misled by the continued inclusion of the withdrawn partner’s name as part of the firm name since an expectation would be engendered that by retaining the firm, they would obtain the services of the named individual. This was the situation presented by N.Y.C.L.A. Opinion #680, supra, in which the attorneys wanted to form a “lawyers cooperative” — apparently solely for purposes of advertising and expense-sharing, e.g. on stationery costs — but, although using a firm name consisting of their surnames, in fact maintain entirely separate practices. In contrast, in the situations dealt with in both Opinion #89-17 and in the instant case, the client could not be misled as to the identity of the .attorneys available to the client when the firm is retained, since the attorney whose name may have attracted the client to the firm will in fact be maintaining a continuing professional relationship with that firm (DR 2-102[A][4]). Since it is not inappropriate for the attorney to maintain an “Of Counsel” listing — it is a common and accepted practice for attorneys to maintain continuing professional relationships with firms and to be listed as “Of Counsel” on the letterhead even while maintaining their own separate practices — by the logic of opinion #89-17, the response to. the instant inquiry should be unqualifiedly affirmative.

The Committee observes that the proposed conduct which is the subject of inquiry falls literally within the usage permitted by DR 102 (B) (the surname to be used being that of a former “member” and current “lawyer in the firm”). Neither is the conduct literally proscribed by EC 2-11. While the usage may be interpreted as conflicting with a principle enunciated in EC 2-11, an Ethical Consideration, in contrast to a Disciplinary Rule, is aspirational rather than mandatory (Code of Prof. Resp., Preliminary statement), and in this case the principle has been contradicted by the Court of Appeals, thus rendering such a suggested interpretation questionable. Finally, the Committee observes that the four Appellate Divisions of the state Supreme Court, which are charged with the supervision of the conduct of attorneys in the promulgation of regulatory standards consistent with that authority, adopted as court rules a revised Code of Professional Responsibility embodying the above-cited Code prov1s1ons virtually unchanged from their prior incarnation, effective September 1, 1990, which was well subsequent to both the 1984 Jacoby decision and this Committee I s 1989 Opinion #89-17. The Committee therefore re-affirms the holding of Opinion #89-17, and determines that at least as long as the withdrawn partner.maintains a continuing “Of Counsel” relationship with the firm, the name of a partner who withdraws from a firm but continues to practice law may be included as part of the firm name.

(Approved by Executive Subcommittee 2/25/92; approved by full Committee 3/18/92 )

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1 Judiciary Law §478 provides, in relevant part:
“It shall be unlawful for any natural person … to hold himself out to the public as being entitled to practice law . . . in such manner as to convey impression that he is a legal practitioner of law … or in any manner to advertise that he either alone or together with any other persons or pesrson has, owns, conducts or mantains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state. . . .”

2 A shareholder in a professional corporation — even one whose surname is utilized as part of the professional corporation’s name — is liable only for negligent or wrongful conduct committed by himself or someone under his direct supervision and control while rendering professional services. N.Y.B.C.L. § 1505(a); We’re Associates Company v. Cohen, Stracher & Bloom, P.C., 103 A.D.2d 130 (2d Dep’t 1984), aff’d, 65 N.Y.2d 148 (1985). Since this is the same liability that would be borne by an attorney who, as “Of Counsel,” acted as an agent of the firm (although admittedly different from the liability that a member of a partnership), it cannot be said that the inclusion in a firn name of the name of an “Of Counsel” would in any sense be misleading regarding the relative liability of “named” indIviduals.