OPINION 491
November 1993

Question Presented

Is it proper for partners in a law firm founded by them after withdrawing from another law firm to use the name of a deceased partner in the former firm as part of the name of the new firm?

Facts

A, B and other lawyers form a partnership for the practice of law in the State of Texas under the name "A & B" and practice under that name for a number of years. From time to time, additional partners are admitted to the firm. B withdraws from the practice of law but consents to the further use of his name by the partnership. A dies while a partner in the firm. Several of the partners who had practiced under the supervision of and in the same section with A subsequently withdraw from "A & B," form a new partnership for the practice of law, and wish to use the name "A & X" as the name of their new partnership. A's heirs have granted their consent to the use of A's name in the new partnership.

Question

Are lawyers who have withdrawn as partners in a law firm and have organized a new law firm prohibited from using in the name of their new firm the name of a deceased partner in the firm from which they withdrew?

Discussion

Disciplinary Rule 7.04(a) provides:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer of 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 the names of a professional corporation or professional association may contain "P.C." or "P.A." or similar symbols indicating the nature of the organization, 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. Nothing herein shall prohibit a married woman from practicing under her maiden name." [Emphasis added]

Rule 7.04 prohibits lawyers from using a firm name that contains the name of a retired or deceased lawyer unless the retired or deceased lawyer was (1) a member of the firm, or (2) a member of a predecessor firm in a continuing line of succession.

Under the facts presented, A died before the formation of the firm "A & X." A was never a member of that new firm. In no sense can the new partnership formed by the withdrawn members of "A & B" be considered a success or "A & B," which continues to exist.

"A & B," in which A had been a partner, was not a predecessor firm of "A & X."

The fact that A's heirs have consented to use of his name in the name of the new firm and that some of the founders of the new firm practiced in the same section with A while members of "A & B" is not relevant in view of the provisions of Rule 7.04. Although the consent of A's heirs might be relevant in determining whether the use of A's name is "otherwise lawful," approval by his heirs cannot give validity to a use not permitted by DR 7.04.

Conclusion

The use of the name of A in the name of the new partnership formed by the lawyers who withdrew from the law firm "A & B" would violate DR 7.04.