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90 N.J.L.J. 53
January 26, 1967
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
OPINION 105
Partnership - Not in Fact
An inquiry has been made as to whether it is proper for two
attorneys to hold themselves out as a partnership when not all of
their work is done in the partnership form. The inquiry, however,
goes on to say that both attorneys are admitted to practice law in
the State of New Jersey and are both actively engaged in the
practice of law and that each has separate law offices in separate
municipalities. They state further that while they work jointly on
one of the attorney's trial cases and also work jointly on the
other attorney's commercial matters, they divide the fees received
from these under some sort of a plan which they call "jointly
handled matters". Each uses the office of the other for interviews
and other activities related to the jointly handled matters and
each is presently designated "of counsel" on the legal stationery
of the other. As to all other matters, they each practice
separately and retain the income derived therefrom. They further
explain that each pays for his own overhead expenses and with that
explanation, they want to know whether it is proper to retain the
above arrangement and hold themselves out as "A & B,
Attorneys-at-law". From the form of the inquiry we conclude that no
partnership in fact exists.
In Drinker, Legal Ethics 204 (1953), it is stated very
definitely that attorneys may not hold themselves out as a
partnership where no real partnership, in fact, exists.
In A.B.A. Comm. on Professional Ethics and Grievances, Opinion
106 (1934), it was held that it was improper for a group of lawyers
to hold themselves out as a partnership where, in fact, no
partnership existed and the opinion went on further to say that it
would be a misrepresentation to the public and a violation of the
canon involved to so demean themselves.
Opinion 115 (1934), by the same committee, reiterated the same
rule. That opinion explained in great detail how Canon 33 would be
involved and would be violated. The committee held that, in its
opinion, a proper appreciation of professional responsibility
forbids the continuance of such a course of conduct. The same views
were reiterated in Opinion 126 (1935) and Opinion 277 (1948).
Canons of Professional Ethics, Canon 33 is complete in its
language indicating that what is described in this inquiry should
be prohibited. It is elementary that in the selection and use of a
partnership or firm name, no false or misleading names or
references should be used. It is the opinion of this Committee that
it is not proper for these attorneys to hold themselves out as a
partnership because no partnership exists.
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