Can a law firm keep a former partner's name in the firm name after that partner retires and becomes 'of counsel'?

Plain-English summary

A member asked whether a firm could keep, in the firm name, the name of a partner who had become "of counsel" and would continue to represent clients at the firm's office. The committee first recounted how the term "of counsel" had broadened from its historical meaning (a retired or semi-retired former partner) to include a lawyer who maintains a close, continuing relationship with a firm without being a partner, associate, or shareholder. For fee-division purposes, the committee noted it had distinguished between an "of counsel" lawyer in the traditional sense and one who does not practice exclusively through the firm (Opinion 94-7).

On the firm-name question, the committee distinguished Opinion 71-49, which found it misleading to keep a former partner's name in the firm name where that partner left to handle referred trial work at an adjacent independent office. The committee had not previously addressed keeping the name of a former partner who continues to work at the firm under the traditional "of counsel" arrangement. Looking to ABA Formal Opinion 90-357, Ohio Opinion 91-18, and Michigan Opinion RI-90, the committee agreed it is not misleading to keep a retired partner's name in an established, recognized firm name.

The committee added two conditions: the retired partner had to be "of counsel" in the historical sense, working exclusively through the firm, and the "of counsel" designation had to appear with the attorney's name on the firm's letterhead.

Currency note

This opinion was issued in 2000, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here. The opinion cites the rules then governing firm names and letterhead, noting they correspond to current Rule 4-7.21.

Common questions

Q: Can a Florida firm keep a retired partner's name in the firm name?

A: Under this opinion, yes, where the firm name is established and recognized and the retired partner remains "of counsel" in the traditional sense, working exclusively through the firm.

Q: What did the committee require for the arrangement to be proper?

A: Per the opinion, the retired partner had to be "of counsel" in the historical sense (working exclusively through the firm), and the "of counsel" designation had to appear with the attorney's name on the firm's letterhead.

Q: How is this different from Opinion 71-49?

A: The committee distinguished 71-49, which addressed a former partner who left to handle referred trial work at a separate independent office; keeping that partner's name in the firm name was misleading. Here the partner continued to work through the firm itself.

Background and rules framework

The opinion interpreted the Florida rules then governing firm names and letterhead (the precursor to current Rule 4-7.21, Model Rule 7.5) and drew on the fee-division distinction it had earlier applied to "of counsel" lawyers under the fee rules (Rule 4-1.5; see Opinion 94-7).

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 / Fla. Rule (firm names and letterhead; the opinion notes the current counterpart is Rule 4-7.21)
• Model Rule 1.5 / Fla. Rule 4-1.5 (division of fees), via Opinion 94-7

Other opinions cited:

• Fla. Ethics Ops. 71-49, 75-41, 94-7
• ABA Formal Opinion 90-357; Ohio Opinion 91-18; Michigan Opinion RI-90

See also

• FL Bar Ethics Op. 94-7: When the Fee-Division Rules Apply to an "Of Counsel" Lawyer
• FL Bar Ethics Op. 98-3: In-House Insurance Counsel and Firm Names
• Ohio Bd. Prof. Conduct Op. 2008-001: "Of Counsel" Relationship

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-00-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-00-1-3.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 00-1
April 30, 2000
Advisory ethics opinions are not binding.
A law firm may continue to use a firm name which contains the name of a former partner of the firm who has retired and become a traditional "of counsel" to the firm, by offering legal services only through the firm.
Opinions: 71-49, 75-41, 94-7, ABA Formal Opinion 90-357, Ohio Opinion 91-18; Michigan Opinion RI-90
RPC: [See current 4-7.21]
A member of the Florida Bar has sought the Committee's guidance on the use a firm name. A partner in the law firm has become "of counsel" to the firm and will continue to represent clients at the firm's office. The firm would like to continue to include the "of counsel" attorney's name in the firm name.
Historically, the appellation "of counsel" designated a retired or semi-retired former partner who continued to be available to the firm. The present use of the term "of counsel" has broadened and can be used to identify an attorney who maintains a close, continuing relationship with a firm, but is neither a partner, an associate nor a shareholder. Opinions 71-49; 75-41; 94-7; ABA Formal Opinion 90-357. In addressing the application of the fee division rules to "of counsel" attorneys, the Committee has made a distinction between an attorney who is "of counsel" as the term was traditionally used, and an "of counsel" attorney who does not practice exclusively through the firm. Opinion 94-7. The Committee concluded that the rules governing the division of fees between attorneys who are not in the same firm apply to the division of fees with an "of counsel" attorney unless the "of counsel" attorney practices exclusively through the firm in the traditional sense of the word.
The Committee has previously considered a proposal to maintain a firm name which contains the name of a former partner who becomes "of counsel" to the firm. Opinion 71-49 concludes that, although a partner who withdraws from a firm to handle the firm's referred trial work at an adjacent independent office may be designated "of counsel" on the firm's letterhead, it would be misleading to continue to include the former partner's name in the firm name. This committee has not, however, addressed the continued use of a firm name that includes the name of a former partner who continues to work at the firm under the traditional use of the term "of counsel." Ethics committees that have considered this issue have found that it is not misleading to include a partner's name in a firm name when the partner retires and becomes "of counsel." ABA Formal Opinion 90-357; Ohio Opinion 91-18; Michigan Opinion RI-90. Both the Ohio and the Michigan opinion require that the firm's name be established and recognized. This committee agrees with those opinions and further requires that the retired partner be "of counsel" in the historical sense, working exclusively through the firm, and that the designation "of counsel" appear with the attorney's name on the firm's letterhead.