Editor's Note: The reference to "DR-2-102(B)"should be changed to reference "DR-2-102(A)" and the reference to "2-102(c)" should be changed to reference "DR-2-102(B)"
SELECTION OF A LAWYER - PARTNERSHIP NAMES- Continued use of a partnership name subsequent to the dissolution of the partnership with the former partners continuing to practice law.
The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the facts presented under the following hypothetical situation:
Attorneys A and B operated under the partnership name "A and B". There was an amicable dissolution of the partnership with the partners agreeing to continue to cooperate and work together on all matters pending with the partnership as of the day of the dissolution. Each partner, subsequent to the date of the dissolution, has continued the practice of law separately in different offices with only the matters pending at the time of the dissolution of the partnership continuing to be the responsibility of both the partners. However, subsequently despite attorney B's objections, attorney A continued to display the firm name "A and B" at his offices, continued to maintain a bank account in the name of "A and B", continued to use stationery with the firm name "A and B", and answered the telephone at his law office as "A and B". May the partnership name "A and B" continued to be used?
Disciplinary Rule 2-102(B) provides that:
A lawyer in private practice shall not under . . . a name that is misleading as to the identity of a lawyer of lawyers practicing under such names, or a firm name containing names other than those of one or more of the lawyers in the firm . . ."
In addition, Disciplinary Rule 2-102(C) provides:
"A lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are, in fact, partners."
These disciplinary rules are founded in the Canon 2 of the Code of Professional Responsibility which states that "a lawyer should assist the legal profession in fulfilling its duty to make legal counsel available." Incorporated in this Canon is the ethical consideration that one of the functions of the legal profession is "to facilitate the process of intelligent selection of lawyers." Ethical Consideration 2-11 expresses the reason why the above quoted disciplinary rules are applicable to the hypothetical given. It is stated "the name under which a lawyer conducts his practice may be a factor in the selection process," and "the name of a partner who withdraws from a firm but continues to practice law should be omitted from the firm name in order to avoid misleading the public." Although it is acknowledged that A and B in the hypothetical given above continued to bear joint and several responsibility for the matters arising prior to the dissolution of their partnership, it is the opinion of the Ethics Committee that the continuation of the use of the name of the former partnership has no efficacy with regard to the completion of the business pending on the date of the dissolution of the partnership. On the contrary, the primary purpose of the name under which a law practice is conducted is "to facilitate the process of intelligent selection of lawyers." To permit the continued use of a partnership name when in fact the members of the former partnership are separately engaged in the practice of law "could mislead laymen concerning the identity, responsibility, and status of those practicing thereunder." Ethical Consideration 2-11.
Therefore, it is the opinion of the Ethics Committee that the partnership name "A and B" under the circumstances set forth in the above hypothetical should not continue to be used subsequent to the date of dissolution of the partnership.