Ethics Question of the Month - September 2018
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What’s in a Name?
Law firm Abel, Baker, Caldwell & Dodd (“ABC&D”) has four name partners. Partner Abel decides to retire from practicing law and leaves the firm. Baker decides to leave the firm to open a solo practice under his own name.
The remaining partners wish to continue to practice under the same firm name because it is well known in the community. Abel and Baker both agree to allow ABC&D to continue to use their names in exchange for payment.
Three years later, Abel decides he’s tired of retirement and opens a solo practice under his own name. Under the current Ethics Opinions issued by the Professional Ethics Committee for the State Bar of Texas, which of the following is accurate?
- ABC&D may continue with the same name even though Abel and Baker are practicing elsewhere and no longer have any association with the firm
- ABC&D may continue to use Abel’s name, but not Baker’s
- ABC&D may continue to use Baker’s name, but not Abel’s
- ABC&D may not use either Abel’s name or Baker’s name
Rule 7.01 of the Texas Disciplinary Rules of Professional Conduct states in 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.”
Ethics Opinion 605 (March 2011) states that:
“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.”
One might reasonably conclude that Ethics Opinion 605 would prohibit ABC&D from using Abel’s name as well. Ethics Opinion 466 (October 1990), however, provides otherwise. In this instance, the Committee determined that a lawyer who first retires and then returns to the practice of law does not prohibit the original law firm from continuing to use his name “so long as the A, B & C law firm does not take any actions that would mislead clients or the public as to the relationship between Lawyer A and the law firm.”
Because Abel was retired before he started a new practice under his new name, the firm is allowed to keep his own name, according to Ethics Opinion 466. Because Baker left to open his own practice without retiring, the firm cannot keep using his name under Ethics Opinion 605.