OPINION NO. 91-11 April 3, 1991 FACTS: Attorney A wishes to retire as a partner from the law firm of A, B & C, Ltd. The inquiring attorney asks whether the law firm may ethically retain Attorney A s name in the firm name. According to the inquiring attorneyf Attorney A would be designated in the Martingale-Hubbell Law Directory as retired, but would continue to advise clients in estate planning and pension matters on a part-time basis. QUESTIONS: 1. Under the Arizona Rules of Professional Conductr may the name of a retired partner be used in the name of a law firm? 2. What disclosure, if any, is necessary to insure that a firm name which includes a retired partner s name is not false or misleading? 3. Is any further disclosure required when an attorney has retired as a partner, but is continuing to advise some clients on a part-time basis? ETHICAL RULES INVOLVED: ER 7.1. Communications Concerning a Lawyer s Services A lawyer shall not make a false or misleading communication about the lawyer or the lawyer s services. A communication is false or misleading if it: (a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; (b] is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or (c) compares the lawyer s services with other lawyers services, unless the comparison can be factually substantiated. ER 7.5. Firm Names and Letterheads (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates ER 7.1. A trade name may not be used by a lawyer in private practice. *****
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact. OPINION: ER 7.5(a) prohibits a lawyer from using a firm name that violates ER 7.1. ER 7.1 prohibits a lawyer from making a false or misleading communication about the lawyer or his or her services. ER 7.l(a) defines one type of a false or misleading COIIImunication as one that contains a material misrepresentation of fact or lawr or omits a fact necessary to make a statement, considered as a whole, not materially misleading. 1 The predecessor to ER 7.5(a), DR 2-102(B), specifically allowed a law firm to use the name of either deceased or retired partners in the firm name as long as there was a continuing line of succession in the firm s identity. Although neither ER 7.5 nor its Comment addresses the retention of a retired partner s name in a firm name (the Comment to ER 7.5 does state that names of deceased partners may be included), we do not believe that the Rules require a different result than the Code. Neither deceased nor retired partners practice law, and as long as there is a continuing line of succession in the firm s identity, there is no reason to allow one and not the other. In other words, if the use of a deceased partner s name in a firm name is not misleading, neither is the use of a retired partner s name. This view is supported by the opinions of other states ethics committees which have approved the use of a retired partner s name in a firm name under rules identical with, or substantially similar to, Arizona s rules. Connecticut Bar Informal Opinion 87-16 (1/13/88)(ABA/BNALawyers Manual on Professional Conduct, p. 901:2057);North Carolina State Bar Opinion 1 (7/24/86)(op.cit. at 901:6603). Additionally, in an informal opinion, the American Bar Association Committee also concluded that the name of a retired partner may be included in a firm name without violating either ER 7.1 or ER 7.5. A.B.A. Informal Opinion 85-1511 (3/26/85)(ABA/BNA Lawyers Manual, supra pp. 801:366-801:368). If a retired partner s name may be retained in the firm name, the next question is what, if any, disclosure must be made regarding the retired partner s status. ER 7.5 is silent on the issue, except to the extent that it states that firm names and letterheads must comply with ER 7.1. This committee has issued two prior opinions dealing with this issue in the context of a deceased partner. In one, we determined that, under the old Canons (which antedated the Code), a law firm could continue to use the name of a deceased partner 1. J. DR 2-102(B) was part of the Code of Professional Responsibility ( the Code ), the predecessor to the current Rules of Professional Conduct ( the Rules ). (91-11) 2
in the firm name so long as the firm letterhead listing the names of each of the firm s attorneys indicated that the partner was deceased. Opinion No. 180A (October 27, 1965). After Arizona adopted the Code, we relied on DR 2-102(B) and reaffirmed the conclusions reached in our earlier opinion. See Opinion No. 80-3 (February 1, 1980). In these opinions, the committee concluded only that, on the firm letterhead containing a list of all of the firm s lawyers, a deceased partner should be designated as such. We did not consider whether the use of a firm name, without a listing of the names of all of the firm s attorneys, required disclosure of the fact that one of the attorneys in the firm name was deceased. However, the ethics committees of other states have addressed the question, and have dealt with both deceased and retired partners. Those states which have considered the issue have adopted a variety of approaches to it. For example, two states have concluded that the deletion of a retired or deceased partner s name from any listing of individual attorneys names, whether on the firm s letterhead or otherwise, without any additional disclosure, is sufficient. Connecticut Bar Informal Opinion 87-16 (1/13/88), supra; Maine Bar Opinion 77 (3/4/87)(ABA/BNA Lawyers Manual, supra, p. 901:4204). Other states have suggested that there should be some indication on firm stationery and in professional listings that any non-practicing attorney whose name is included in the firm name is either deceased or retired. See Alabama State Bar Opinion 83-162 (11/8/83)(ABA/BNA Lawyefi Manual, -~ P 801:1066); Oklahoma Bar Opinion 300 (9/18/81)(op. cit. at 801:7001-801:7002; Michigan State Bar Informal Opinion CI-617 (4/6/81)(oP. cit. at 801:4819); Illinois State Bar Opinion 709 (11/24/80)(op. cit. at 801:3006); Nassau County (N.Y.) Bar Opinion 89-17 (5/17/89)(op. cit. at 901:6269). One state has simply stated that a firm should indicate on its letterhead that a name partner is retired, without explaining the specific disclosure required or how it is to be made. North Carolina State Bar Opinion 13 (7/24/86), supra. Finally, the ethics opinions of other states are silent on the issue of disclosure. Seer e.g., Ohio State Bar Informal Opinion 86-2 (4/30/86)(ABA/BNA Lawyers Manual, supra, p. 901:6825); Pennsylvania Bar Opinion 87-11 (4/87)(op. cit. at 901:7303); Iowa State Bar Opinion 81-25 (8/25/81)(op. cit. at p. 801:3607); Massachusetts Bar Opinion 81-5 (4/14/81)(op. cit. at 801:4603). We believe that, in an age in which firms of one hundred or more lawyers are not uncommon, there is nothing misleading about the continuing use of a firm name that includes the name of a former partner who has since retired or is deceased. In other words, we agree with the conclusion reached by the Connecticut and Maine committees; we do not believe that the mere use of such a firm name requires any further disclosure. On the other hand, if a law firm, whether on its letterhead or otherwise, lists the names of the individual attorneys practicing with the firmf we believe that it would be misleading not to indicate that a particular individual who is listed is in fact no longer practicing, whether as a result of retirement or death. See, e.g., Oklahoma (91-13) 3
Bar Opinion 300 (9/18/81)(op. cit. pp. 801:7001-801:7002); Michigan State Bar Informal Opinion CI-617 (4/6/81), supra. The next question is whether the fact that a formerly fulltime name partner has retired, but continues to work on a parttime basis, changes either of these conclusions. If a formerly full-time partner can continue to be listed in a firm s name following retirement without the use of such firm name being misleading, the committee believes that the fact that the attorney continues to advise clients in estate planning and pension matters on a part-time basis would not change that result. In other words, if it is not misleading to use a fullyretired attorney s name in a firm namer it is not misleading to use the attorney s name even though he or she continues to practice on a part-time basis. However, we also believe that the fact that the lawyer continues to practice on a part-time basis would make it appropriate to continue to list the lawyer by name in any listing of individual lawyers, whether on the firm letterhead or in other professional listings. Our research discloses no opinions on this specific issue. We believe that the listing of individual names is generally understood by the public to indicate that the lawyer is actually practicing with the group and is available to render services. While the fact that a lawyer is deceased or fully retired, and not available to render services, should be disclosed order to avoid misleading the public, we do not think it ~~llows that the fact that a lawyer is only working on time basis requires disclosure on the firrn$sletterhea~ %r~~ other professional listings. Indeed, given the myriad of practice arrangements currently available in many law firms (for example, some parents are on a reduced hours program), any effort to identify the variety of such arrangements that may exist in a law firm will only lead to confusion. Nevertheless, care must be taken that a firm not suggest that a practicing lawyer, whether full-time or part-time, is a partner if, in fact, he or she is not. In the case of a person who was formerly a partner, the level of disclosure required in listings of individual attorneys is dependent upon the particular individual s financial responsibility to third persons. In those cases in which a semi-retired attorney continues as a partner, and is liable to third parties as such, he or she may be listed without additional disclosure. See, e.q., Maryland State Bar Opinion 85-71 (5/23/85)(ABA/BNA =wyers Manuall -? P 801:4358). However, where the former partner s financial responsibility to third parties has changed, the semi-retired lawyer must be designated as of counsel (or in some other appropriate manner) in listings of individual attorneys by name. See e.g., Nassau County (N.Y.) Bar Opinion 89-17 (5/17/89), ~ra; Vermont Bar Opinion 83-7 (undated) (op. cit. at 801:8607); Maine Bar Opinion 86 (8/31/88)(op. cit. p. 901:4206). Of course, the retired partner s relationship with the law firm must be significant enough to justify his or her of counsel status; in (91-11) 4
other words, he or she must maintain a substantial and continuing relationship with the law firm. See our Opinion No. 74-33 (October 21, 1974). In conclusion, a law firm may continue to use the name of a retired partner in the firm name, as long as there is a continuing line of succession in the firm s identity. In listings of individual attorneys, the name of a retired name partner must either be deleted or there must be some other indication of the non-practicing partner s status. A semi-retired name partner may continue to be included in the firm?s listings of individual attorneys as long as he or she retains financial responsibility to third parties; otherwise, he or she must be designated as of counsel (or by some similar designation) if his or her financial responsibility to clients has changed. (91-11) 5