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When can a lawyer or firm use the title 'of counsel' on letterhead, cards, and ads?

Short answer The opinion concludes that using the title 'of counsel' (and variants such as 'special counsel,' 'tax counsel,' or 'senior counsel') is permissible only where the relationship between the lawyer or firm and the affiliated firm is continuing, close, and regular, and the use is not false or misleading under HRPC 7.1 and 7.5. Any jurisdictional limitations on the 'of counsel' lawyer's practice must be stated wherever the name appears.
Bar
DBHAWAII
Issued
March 19, 2015
Source
View Original PDF

Apply this to your situation

This page answers the general question as of 2015. Ask about yours and see what the current Hawaii Rules of Professional Conduct say for your facts, with citations.

Currency note: this opinion is from 2015
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
How much weight this carries: The Disciplinary Board of the Hawaii Supreme Court states that its formal opinions in effect are binding on all members of the bar, and that failing to observe one can be a basis for disciplinary proceedings. Source.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
View original ethics opinion (PDF)

Plain-English summary

The opinion addresses use of the title "of counsel" on letterhead, business cards, advertisements, telephone listings, office signs, and other communications that represent a relationship between a lawyer and a law firm. It defines "of counsel" as an actively licensed lawyer, or a law firm, that has a continuing, close, and regular relationship with another lawyer or law firm, and applies the same analysis to designations such as "counsel," "special counsel," "tax [or other specialty] counsel," and "senior counsel."

The opinion concludes that using the title is permissible as long as the relationship between the two is continuing, close, and regular and the use of the title is not false or misleading. It grounds this in HRPC 7.1, which bars a false or misleading communication about the lawyer or the lawyer's services, and HRPC 7.5, which bars a firm name, letterhead, or professional designation that violates Rule 7.1. The prohibition against misleading representation is violated if the "of counsel" title, or a variant, is used to describe a relationship that is not continuing, close, and regular.

The opinion also states that any jurisdictional limitations on the practice of the "of counsel" lawyer or law firm must be stated on the affiliated firm's letterhead and other communications in which the "of counsel" name is included.

In practice

Under this opinion, a Hawaii lawyer may hold out an "of counsel" relationship only when it is a genuine continuing, close, and regular affiliation, not an occasional referral or a one-off engagement, and the designation must not mislead the public. The opinion holds that the same standard governs the variant titles, and that where the affiliated lawyer is not admitted in every listed jurisdiction, the communication must state that limitation.

Common questions

Q: What relationship justifies an "of counsel" designation?

A: The opinion concludes the designation is permissible only for a continuing, close, and regular relationship between the lawyer or firm and the affiliated firm.

Q: Do the variant titles like "senior counsel" follow the same rule?

A: Yes. The opinion applies the same analysis to "counsel," "special counsel," "tax [or other specialty] counsel," and "senior counsel."

Q: Must jurisdictional limits be disclosed?

A: Per the opinion, any jurisdictional limitations on the "of counsel" lawyer's or firm's practice must be stated wherever the name is included.

Background and rules framework

The opinion interprets HRPC 7.1 (no false or misleading communication about the lawyer or the lawyer's services) and HRPC 7.5 (firm names, letterhead, and professional designations that violate Rule 7.1). These correspond to Model Rules 7.1 and 7.5.

Citations and references

Rules of Professional Conduct (Hawaii; cf. Model Rules):

  • HRPC 7.1 (false or misleading communications) (cf. Model Rule 7.1)
  • HRPC 7.5 (firm names and professional designations) (cf. Model Rule 7.5)

See also

Source

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative. Board M embers

Disciplinary Board of the Hawai#i Supreme Court 201 Merchant Street, Suite 1600 Honolulu, Hawai#i 96813 Telephone (808) 599-1909 www.odchawaii.com

James L. Branham, Esq.
Gary M . Farkas, Ph.D., M BA
Diane D. Hastert, Esq.
Philip D. Hellreich, M .D.
Shelton G.W. Jim On, Esq.
Harrilynn K. Kame#enui, Esq.
Hon. Evelyn B. Lance (Ret.)
Philip H. Lowenthal, Esq.
Jeffrey P. M iller, Esq.
Carolene N. Kawano Neely, M .S.W., M .Ed. Jeffrey S. Portnoy, Esq. Irwin J. Schatz, M .D. Judith A. Schevtchuk, Esq. Asst. Chief Eugene Uemura, (Ret.), M A.Ed.

Chairperson

Hon. Clifford L. Nakea (Ret.)
Vice Chairperson

Hon. Leslie A. Hayashi
Secretary

Nathan J. Sult, Esq.
Treasurer

Joy M . M iyasaki, Esq.
Filing Clerk

Faye F. Hee
Board Counsel

Bradley R. Tamm, Esq.

FORMAL OPINION NO. 43
OF COUNSEL
This Opinion addresses the use of the title "of counsel" on letterhead, business cards, advertisements, telephone listings, and office signs or in other circumstances where there is a representation there is some relationship between a lawyer and a law firm. As used in this opinion, the term "of counsel" refers to an actively licensed lawyer who, or a law firm that, has a continuing, close, and regular relationship with another lawyer or law firm. Any jurisdictional limitations on the practice of the "of counsel" lawyer or law firm must be stated on the affiliated firm's letterhead and other communications in which the name of the "of counsel" lawyer or law firm is included. This opinion applies to any of the the types of relationships described herein, including, but not limited to, designations as "counsel," "special counsel," "tax [or other specialty] counsel," or "senior counsel." The use of the title "of counsel" in identifying the relationship of a lawyer or law firm with another lawyer or law firm is permissible as long as the relationship between the two is a continuing, close, and regular relationship and the use of the title is not false or misleading. This opinion is based on the prohibition against misleading representations found in HRPC 7.1 and HRPC 7.5. HRPC 7.1 provides that "[a] lawyer shall not make a false or misleading communication about the lawyer or the lawyer's services." HRPC 7.5 states that "[a] lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1." The prohibition against misleading representation is violated if the "of counsel" title, or one of its variants, is used to describe a relationship other than one that is continuing, close, and regular. The Disciplinary Board’s mission is to maintain the integrity of the legal profession and protect the public from professional misconduct by attorneys.

DATED:

Honolulu, Hawai#i, April 29, 2010
Hon. Clifford L. Nakea (Ret.)
Chairperson, Disciplinary Board

UPDATED:

Honolulu, Hawai#i, March 19, 2015
________
Hon. Clifford L. Nakea (Ret.)
Chairperson, Disciplinary Board

FORMAL OPINION NO. 43, Page 2.

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