FACTS[1]
Attorney A founded the law firm of "Attorney A and Associates" in 1985. Several years later, the State Bar initiated disciplinary proceedings against Attorney A pursuant to Ariz. R.S.Ct. 53(a).
The discipline action was still ongoing when Attorney B became a partner of the law firm with Attorney A and the firm name changed to "A & B". A third partner, Attorney C, joined the firm and the name changed to "A, B & C". The disciplinary proceedings were still unresolved.
After several continuances of the disciplinary matter, Attorney A submitted evidence that he was unable to assist in his defense under the provisions of Ariz. R.S.Ct. 59(d).
Attorney A was transferred to disability inactive status by order of the Supreme Court. Ariz. R.S.Ct. 63 prescribes a series of requirements that must be complied with when an attorney is transferred to disability inactive status. The inquiring attorney has represented that each of these were completed and that Attorney A filed the affidavit of compliance.
Whether Attorney A's name must be deleted from the name of the firm on letterhead, business cards and stationery once being transferred to disability inactive status.
RELEVANT ETHICAL RULES
ER 7.1. Communications and Advertising Concerning a Lawyer's Services
(a) A lawyer shall not make false or misleading communication about the lawyer or the lawyer's services. A communication is false or misleading if it:
(1) contains a material misrepresentation of fact or law or omits a fact necessary to make the statement considered as a whole not materially misleading;
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(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.
There is no Arizona ethics opinion directly on point. However, there are two analogous situations that have been addressed by other jurisdictions. The first arises when a named partner in a firm retires or dies. The other is when the named partner is suspended from the practice of law for disciplinary reasons.
In the first instance, it has been generally held that the firm may continue to use the retired or deceased partner's name provided that: (1) there is no implication that the partner is still practicing with the firm; (2) that the partner, if retired, is not practicing elsewhere; and (3) that the firm is otherwise legally entitled to use the partner's name. See, e.g., ABA Comm. on Ethics and Professional Responsibility, Informal Op. 85-1511 (1985).
Conversely, in the second case, a suspended partner's name must be dropped in all communications with the public. In Professional Ethics Comm. of Bd. of Overseers of Me. State Bar, Op. 132 (1993), a Maine Bar Rule, which is different from both the ABA Model Code and the Model Rules of Professional Conduct upon which the Arizona Rules are based, the Committee concluded that the name of the suspended partner must be dropped from all public communications of the law firm. The Committee's primary concern was that the disciplinary proceeding would not be given the requisite weight, if to the public, everything continued as normal.
Ethical Rule 7.5(a) states that a lawyer shall not use a firm name or letterhead that violates ER 7.1 (section (d) is also relevant, but would probably be more specific to the ethical considerations of the attorney who is on temporary disability). The Comment to this Rule specifically states that, "[a] firm may be designated by the names of all or some of its members, or by the names of deceased members where there has been a continuing succession in the firm's identity."
The Comment to the Rule specifically permits a continuation of the name when one of the partners dies. An Arizona opinion also has held that a firm name may continue where a partner retires. Ariz. Op. 91-11. With no prior opinion directly on point, the pertinent issue becomes whether disability inactive status is similar enough to retirement to be treated the same with respect to the firm name (and other communications) with the general public.
Furthermore, ER 7.1 precludes any false or misleading statements about the lawyers' services. Further, the Rule provides that a statement is misleading if it omits a fact necessary to make the statement as a whole not misleading.
When an attorney, in good standing, retires and is transferred to inactive status, and decides to return to practice, he does not have to petition the Supreme Court for reinstatement. Conversely, when an attorney on disability inactive status seeks to return to active status, he must petition the Supreme Court as well as undergo a significantly more detailed approval process. This distinction alone suggests that disability inactive status involves something more than retirement and therefore the two should not be considered analogous. As such, Attorney A's name should not be used in the firm name or any other communication with the general public.
The firm should not continue to use Attorney A's name in the firm name, letterhead, business cards or stationery, while Attorney A is on disability inactive status.
[1] Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. Ó State Bar of Arizona 2002