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Opinion Number 575
Attorneys A and B practice as a partnership under the name of A&B. The A&B firm is dissolved and A forms a new partnership and a new firm with an attorney C and they practice under the name A&C.
At the time of the dissolution of A&B, B is desirous to continue the litigation of several cases which were handled under the name of A&B despite the dissolution (the name of A is very prestigious, especially politically).
The question is:
Is such use of A&B after the dissolution proper?
Would it be proper for the attorney, who represents opposing parties in one of the actions continued by it under the name of A&B, to point out this during the choice of an impartial jury?
Canon 33 provides in pertinent part that “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 that no imposition or deception is practiced through this use.” Local Custom in New York permits the continued use of the names of deceased or former partners in a partnership name through a succession of firms, in the absence of special circumstances, N.Y. County 67, 316. Where, however, a partnership is dissolved and the respective partners engage in practice separately, the use by either partner of his former partners name would be misleading and accordingly improper. N.Y. City 40, ABA 258. The new Code of Professional Responsibility carries forward the limitations imposed by the previous Canons. DR 2 – 102 (B) (C), DR 2 – 102 (B) expressly restricts the continued use of the name of a retired partner to “a continuing line of succession of firm members. As stated in Drinker Legal Ethics” at page 206, “A partnership name may not be misleading, as it would be while the firm had the name in question and one of the partners is still alive and practicing elsewhere ……”. In the case presented, “A” presumably no longer represents the client and has no financial interest in the matter, The continued use of his name would appear to be an effort to capitalize on his prestige, and in fact would constitute a misrepresentation in violation of Canon 33, Opposing counsel would be justified in calling the situation to the attention of the Justice presiding at the trial, prior to the selection of the jury. It would not, however, appear to be a proper subject for comment to the jurors. Canon 17. Cf. ABA Code of Professional Responsibility, EC 7-37.
December 24, 1969