Ezel / Ethics Opinions / DCBAR
DCBAR February 2007

Can a lawyer be 'of counsel' to a firm bearing his name while also being a partner in a different firm that also uses his name?

Short answer: The opinion concludes that a lawyer may be 'of counsel' to one firm and a partner in another, so long as the 'of counsel' association is regular and continuing and the lawyer is generally available personally to render legal services, and the two firms are treated as one for conflict-imputation purposes under Rule 1.10. A firm may keep a former partner's name in the firm name where he remains associated as 'of counsel,' and his name may also appear in the new firm's name, provided he maintains a regular and continuing association with both firms; three non-lawyer committee members dissented from this part as likely to mislead clients.

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This page answers the general question as of 2007. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.

Currency note: this opinion is from 2007
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.
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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) is the authoritative source for any reliance.

Plain-English summary

Opinion 338 (published February 2007) addresses a partner ("X") in a firm bearing his name who is withdrawing to become "of counsel" while forming a new firm, also bearing his name, in which he will be a partner. The two firms agree to redirect misdirected communications to each other and to run a unified conflicts policy. The Committee answers two questions: whether X may be "of counsel" in one firm and a partner in another, and whether his name may appear in both firm names.

On the first question, the opinion concludes a lawyer may practice in more than one firm. The prevailing view is that a lawyer may belong to more than one firm if the firms are treated as one for imputation of conflicts, and ABA Formal Opinion 357 (1990) recognized that an "of counsel" lawyer is associated with each firm. Under D.C. Rule 1.10(a) and prior Opinion 247, the "of counsel" designation makes the lawyer "associated with" the firm, so any disqualification of a lawyer in either firm is imputed to all lawyers in both firms (subject to the exceptions in Rule 1.10(a)(1) and (2)). The opinion notes the firms may need to obtain a client's permission under Rule 1.6 to share enough information about a new matter to run conflict checks across both firms.

On the second question, the opinion concludes that the firm X is leaving may retain his name and that the new firm may also use it. Under Rules 7.5(a) and 7.1, a firm name may not be false or misleading. Prior Opinion 277 said a firm may keep a former partner's name except where the former partner is practicing law elsewhere, because that could imply a continuing relationship that no longer exists. This case is different: X will continue to be associated with the first firm as "of counsel," so he is not "formerly associated," and newly adopted commentary to Rule 7.5 confirms that Opinion 277's concern was the misleading use of the name of a lawyer "formerly associated" with the firm who is practicing elsewhere. The opinion concludes that if X has a regular and continuing association with both firms and is generally available personally to render legal services at each firm bearing his name, using his name in both names is consistent with Rule 7.5(a); if he practiced with only one, using his name in both could mislead. The opinion cautions that X must take special care to ensure each client understands which firm is delivering services and is responsible for the matter. Three non-lawyer members of the Committee dissented from this part, viewing the dual use of the name as likely confusing or misleading to prospective clients, and an "of counsel" designation on letterhead as insufficient notice.

In practice

Under the D.C. rules as they stood at the time of the opinion, a lawyer may be "of counsel" to one firm while a partner in another, provided the "of counsel" relationship is regular and continuing and the lawyer is generally available personally to render legal services. The opinion concludes the two firms are treated as one for conflict imputation under Rule 1.10(a), so a disqualification in either firm is imputed to both, and the firms may need client consent under Rule 1.6 to share conflict-check information.

The opinion concludes that the lawyer's name may appear in both firm names where he maintains a regular and continuing association with each and is generally available to render services at each, but that using his name in both would mislead if he actually practiced with only one. The opinion directs the lawyer to ensure each client understands which firm is responsible for the matter. Three non-lawyer members dissented from this part. Because the opinion predates later rule developments, verify the current D.C. rules before relying on specific requirements.

Common questions

Q: Can a lawyer be 'of counsel' to one firm and a partner in another at the same time?

A: The opinion concludes yes, where the "of counsel" relationship is regular and continuing and the lawyer is generally available personally to render legal services, and the two firms are treated as one for conflict imputation.

Q: How are conflicts handled across the two firms?

A: The opinion concludes that under Rule 1.10(a) the lawyer is "associated with" each firm, so a disqualification of any lawyer in either firm is imputed to all lawyers in both, subject to the Rule 1.10(a)(1) and (2) exceptions, and the firms may need client consent under Rule 1.6 to run conflict checks.

Q: Can the lawyer's name stay in the old firm's name and also appear in the new firm's name?

A: The opinion concludes yes, so long as the lawyer keeps a regular and continuing association with both firms and is generally available to render services at each. If he practiced with only one, using his name in both could be misleading under Rules 7.5(a) and 7.1.

Q: Did the whole Committee agree?

A: No. The opinion concludes the dual use of the name is permissible, but three non-lawyer members dissented from that part, viewing it as likely confusing or misleading to prospective clients.

Background and rules framework

The opinion interprets D.C. Rule 7.5 (firm names and letterheads), including Rule 7.5(a) and newly adopted commentary, read with Rule 7.1 (false or misleading communications) and Rule 1.10(a) (imputed disqualification, which treats an "of counsel" lawyer as associated with the firm). It also notes Rule 1.6 (confidentiality) for cross-firm conflict checking. It builds on prior D.C. Opinions 247 (1994), 277 (1997), and 332 (2005), and on ABA Formal Opinions 90-357 and 357 (1990).

Citations and references

Rules of Professional Conduct:

  • D.C. RPC 7.5, 7.5(a) / Model Rule 7.5 (firm names and letterheads)
  • D.C. RPC 7.1 / Model Rule 7.1 (false or misleading communications)
  • D.C. RPC 1.10, 1.10(a) / Model Rule 1.10 (imputed disqualification; "of counsel" association)
  • D.C. RPC 1.6 / Model Rule 1.6 (confidentiality; cross-firm conflict checks)

Other opinions cited:

  • D.C. Ethics Ops. 247 (1994), 277 (1997), and 332 (2005)
  • ABA Formal Op. 90-357 (use of the "of counsel" designation); ABA Formal Op. 357 (1990)

See also

Source

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