March 17, 2021 – A long-time partner has retired from your firm. Do you need to change your firm’s name?
Question
I work at medium-sized firm where one of the named partners retired a few years ago, and we kept the name of the retired partner in the firm name. Just recently, however, we learned that the retired partner has begun practicing part time with a small firm in the same town.
The retired partner states that they have no objection to us continuing to use their name in the firm name, but one of my current partners is concerned that we may have to cease using the name of the retired partner.
If the retired partner has no objection, may we still continue to use the name of the retired partner, even though the partner is practicing law at another firm?
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Ethics Hotline: To informally discuss an ethics question, contact State Bar ethics counselors Timothy Pierce or Aviva Kaiser. They can be reached at (608) 229-2017 or (800) 254-9154, Monday through Friday, 9 a.m to 4 p.m.
Answer
SCR 20:7.5 governs firm names and letterheads, and states in part:
Tim Pierce is ethics counsel with the State Bar of Wisconsin. Reach him by email or through the Ethics Hotline at (608) 229-2017 or (800) 254-9154.
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates SCR 20:7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of SCR 20:7.1.
SCR 20:7.1 prohibits a lawyer from making a false or misleading communication about the lawyer’s services, so these rules taken together prohibit lawyers from using false or misleading firm names. Paragraph [1] of the ABA Comment to SCR 20:7.5 states:
A firm may be designated by the names of all or some of its members, by the names of deceased members where there has been a continuing succession in the firm's identity or by a trade name such as the "ABC Legal Clinic." A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation. Although the United States Supreme Court has held that legislation may prohibit the use of trade names in professional practice, use of such names in law practice is acceptable so long as it is not misleading. If a private firm uses a trade name that includes a geographical name such as "Springfield Legal Clinic," an express disclaimer that it is a public legal aid agency may be required to avoid a misleading implication. It may be observed that any firm name including the name of a deceased partner is, strictly speaking, a trade name. The use of such names to designate law firms has proven a useful means of identification. However, it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm, or the name of a nonlawyer (emphasis added).
This language in the comment reflects the long standing acceptance that the use of a genuinely retired, or deceased lawyer’s name in a firm name is permissible as long as the lawyer ceased practicing while still associated with the firm.1 Therefore, in the scenario, it was permissible for the firm to retain the name of the partner in the firm name once the partner was genuinely retired.
Once the partner resumed practice with another firm, however, the analysis changes. While it is permissible for a firm to continue to use the name of a deceased or retired partner under the circumstances described above, it is clearly misleading to continue to use the name of a lawyer who is actually practicing elsewhere.2
Note here that whether the retired partner does or does not object to the continued use of their name is not relevant to the analysis under SCR 20:7.5, nor is it relevant that the former partner is only practicing “part-time” – the only question is whether it is misleading.3
So, law firm names may continue to use the names of deceased or retired lawyers who ended their practice while still with the firm, a law firm name may not use the name of a lawyer who is practicing with another firm.
The State Bar’s ethics hotline regularly gets questions about firm names, so this column will take a look at some more issues about firm names in the near future.
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Endnotes
1 See, e.g., Connecticut Informal Ethics Op. 99-37 (1999); Michigan Informal Ethics Op. RI-45 (1990); Illinois Ethics Op. 03-02 (2004).
2 See, e.g., Maryland Ethics Op. 00-03 (1999); Nebraska Ethics Op. 10-04 (2010).
3 Whether the use of a former lawyer’s name over their objection violates law outside the disciplinary rules is beyond the scope of this article.
