ETHICS OPINION 467-1958 DECEASED ATTORNEY

NUMBER 467

QUESTION.

 

XYZ Corporation has a Law Department with ten attorneys in it, John Doe is appointed Attorney of Record and Head of the Department. Stationery is printed in the name of “John Doe, Attorney at Law, Usual Street, Anywhere, U.S.A.” All the attorneys’ names appear on the left margin at the top of the paper. All attorneys, including the Department Head, are on Salary paid by the corporation.

 

John Doe dies and Richard Roe is made “Acting Attorney of Record and Acting Department Head”. The corporation refuses to have new stationery printed until the final appointment is made. The attorneys refuse to use the “John Doe” stationery since he is deceased. The attorneys strike out the name of John Doe” and type over it the name “Richard Roe”.

 

The corporation maintains the attorneys should use the “John Doe” stationery and may use it for a reasonable time, e.g., six months, after the death of the Attorney of Record. It obtained an opinion from a Law Firm which stated the attorneys may use the stationery if the type “deceased” after John Doe’s name or if they insert the period of his life, e.g., (1914-1958), after the name.

 

The attorneys maintain this is permissible in the case of a partnership but, in this particular situation, the other members of the department are not “Associates” or “Partners” and hence may not use John Doe’s name, (Penal Law, Sec. 277; Judiciary Law, Sec, 476; Matter of Kaffenburgh, 1907, 188 Misc. 49, 80 N.E. 570).

 

Because of the difference of opinion, I desire the following questions answered:

 

1. May we consider this arrangement a partnership or is the attorney of record considered an individual practitioner with empoloyees?

 

2. Is it legally and ethically proper to continue to use the name of the deceased lawyer and, if so, for what period?

 

3. If answer to No. 2 is yes, must steps be taken to protect the attorneys involved, such as, filing a partnership certificate?

 

4. If the answer to No. 2 is in the negative, are the attorneys who use the stationery of the deceased attorney subject to censure or disbarment?

 

5. Since Richard Roe is only “Acting” Head, what should be done by him to perform his duties within the bounds of Law, and is he justified in striking out the name of the deceased attorney?

 

ANSWER.

 

1. Since the facts stated do not describe a partnership in any sense of the word, it cannot be “considered” a partnership for the practice of law, John Doe was a salaried employee of the corporation, as is Richard Roe, and as are all the other attorneys. They do not share profits or losses, and do not carry on practice as a partnership. Canon 33 prohibits holding out to the public that a partnership exists, when that is not the fact:

 

“In the selection and use of a firm name, no false, misleading, assumed or trade name should be used.”

 

Nor is the attorney of record an individual practitioner with employees as all are employees of the corporation.

 

2. It is not proper to continue to use the name of the deceased lawyer. In the case of real partnership, where local custom sanctions it, names of deceased partners may continue to be used, but Canon 33 enjoins that even in such cases, “care should be taken that no imposition or deception is practiced through this use”. In the case stated, not only is there no partnership, but deception of the public is likely to result from the use of the deceased attorney’s name. (See Opinions 725 and 760, Association of the Bar.)

 

3. Since the answer to 2 is “no”, it is unnecessary to answer this portion of the question.

 

4. An attorney who acts in manner determined to be improper may expect that his conduct will be scrutinized by the proper authorities, and that such discipline will result as those authorities, deem fitting, in all the circumstances.

 

5. The performance of his duties, and the manner of performing those duties are not treated in the question in such manner as to make it possible to answer this portion of the question, except with respect to the query as to striking out the name of the deceased attorney. If the name of the deceased attorney is still legible after the “striking out”, it may be that a question arises as to the propriety of such conduct. If the name is completely effaced, no ethical question appears to be presented.

 

Dated; April 17, 1958.