Can a lawyer elected to Congress keep his name in the firm's name and on its letterhead?

Plain-English summary

The committee was asked how DR 2-102(B) applied when a member or associate of a law firm is elected to the United States Congress, having practiced full time before election and intending to return to full-time practice after leaving office. The rule barred a lawyer who assumes a judicial, legislative, or public executive post from keeping his name in the firm name or professional notices during any significant period in which he is not actively and regularly practicing law, and barred other firm members from using his name during that period. The question turned on the meaning of "actively and regularly practicing law."

The committee concluded that a member of Congress in all probability cannot actively and regularly practice law, because the office is full-time and leaves neither the time nor the physical presence to qualify. It read EC 2-12 and DR 2-102(B) as receding from the older, more permissive view in ABA Formal Opinions 315 and 318. Because the name could not remain in the firm name, it also could not appear in professional notices (defined in DR 2-102(A) to include cards, signs, letterheads, and directory listings), and under EC 2-12 the lawyer should not be identified as a past or present member or hold himself out as practicing, even as "inactive" or "of counsel." The committee added that it was not holding that a member of Congress can never actively practice, but that a "significant" non-practicing period normally includes a member elected to a full term for the time he is engaged in his public duties.

Currency note

This opinion was issued in 1971, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility (EC 2-12; DR 2-102(A), (B)); the bar's own note states that lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22, with firm-name regulation now in Rule 4-7.21. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer who is elected to Congress keep his name in the firm name?

A: Under this opinion, no, while he serves. The committee found a member of Congress cannot actively and regularly practice law, so his name must come out of the firm name.

Q: Can the firm still list him as "of counsel" or "inactive"?

A: No. The opinion says he should not be identified as a past or present member or held out as practicing, even with an "inactive" or "of counsel" designation.

Q: Does this apply to every public office?

A: The opinion confines its holding to members of Congress but observes, as dictum, that the same may be true of other demanding offices, while recognizing that many officeholders hold less demanding positions and may still practice.

Background and rules framework

The opinion applied EC 2-12 and DR 2-102(A) and (B) of the former Code of Professional Responsibility, which governed firm names and professional notices for lawyers who take public office. That subject matter is now addressed by Florida's firm-name rule, Rule 4-7.21, within the advertising rules at 4-7.11 through 4-7.22. The Model Rule analogues are Rules 7.5 (firm names) and 7.1.

Citations and references

Rules of Professional Conduct:

• EC 2-12; DR 2-102(A), (B) [Code of Professional Responsibility; firm-name subject matter now in Rule 4-7.21]

Other opinions cited:

• ABA Formal Opinion 192 (1939): use of legislators' names in firm names.
• ABA Formal Opinions 315 and 318 (Section V): lawyers in public office and firm names.

See also

• FL Bar Ethics Op. 71-49: Withdrawing Partner's Name and "Of Counsel"
• FL Bar Ethics Op. 72-18: Partner on Government Leave, Firm Name
• FL Bar Ethics Op. 72-39: Adding a Partner With a Deceased Partner's Name

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-70-64/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-70-64-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 70-64
February 22, 1971
Advisory ethics opinions are not binding.
A public official who is no longer actively and regularly practicing law cannot allow his name to be used in his law firm's name or in the firm's professional notices. An attorney who is elected to Congress is considered no longer actively and regularly practicing.
Note: The purported quotation in this opinion from ABA Formal Opinion 192 is actually a quotation from ABA Informal Opinion C-620 (March 13, 1963), which in turn was quoted in ABA Formal Opinion 315.
Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22.
CPR: EC 2-12; DR 2-102(A), (B)
Opinions: ABA 192, 315, 318 (Section V)
Chairman Massey stated the opinion of the committee:
Inquiry is made as to the application of CPR DR 2-102(B) when a member or an associate of a law firm is elected to the United States Congress and who prior to election practiced law on a full-time basis and intends to return to full-time practice at such time as he no longer holds the public office. The pertinent portion of the rule is:
A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his name in the firm name or in professional notices of the firm.
More specifically, the question involves an interpretation of the words "actively and regularly practicing law." Also see, EC 2-12.
This is an important question and one which has not been presented to the American Bar Association since its adoption of the Code of Professional Responsibility. Although certainly this Committee would be interested in the position of the ABA, it has been determined that the inquiry should be answered by the Florida Committee without delaying its response to ascertain whether and what consideration the ABA and its appropriate committee will give to the question.
The Committee concludes that a member of the United States Congress in all probability cannot "actively and regularly" practice law as a member of a law firm. It seems clear that EC 2-12 and DR 2-102(B) attempt to recede substantially from the majority opinion expressed in ABA Formal Opinion 315 and subsequently ABA Formal Opinion 318 (Section V). Although federal law does not prohibit congressmen or senators from engaging in private practice of law (except certain specified situations), it seems equally observable that a congressman or senator could not participate in active or regular practice of the law because he is a full-time public servant and he simply does not have the time or physical presence to qualify as an active and regular practitioner of the law. As was pointed out in ABA Formal Opinion 192:
Where members of the legal profession are elected to the United States Senate, to the House of Representatives, and to state and local offices, it is not uncommon for them to continue the use of their names in the firms of which they are members. Doubtless this practice has been established because these positions were at least originally considered part-time only. In recent years, of course, a United States Senator or Representative is in fact pretty well occupied full-time in Washington, except for a limited vacation period.
The cited Opinion 192 was decided February 18, 1939, and to say the least, the time requirements upon a United States congressman or senator have not decreased through the years. It is, therefore, the Committee's conclusion that unless in the unlikely case of the congressman or senator whose public duties do not prevent him from in fact "actively and regularly" practicing law as a member of a law firm, his name cannot remain in the name of the law firm.
Having concluded under the stated circumstances that the man's name cannot remain in the law firm name, said name cannot be used in "professional notices" of the firm (DR -102(B)). The text of DR 2-102(A) speaks of "professional cards, professional announcement cards, office signs, letterheads, telephone directory listings, law lists, legal directory listings, or other similar professional notices or devices," which indicates that the categories mentioned fall under a generic term of "professional notices or devices." This being the case, not only should the congressman's or senator's name under the stated circumstances not remain in the name of a law firm, but the Code of Professional Responsibility also requires his name not be shown in any manner in professional notices, which would include the categories specified, supra.
Further, in contemplation of EC 2-12, assuming the attorney-member of congress is not actively and regularly practicing law, he should not be identified as a past or present member of the firm and should not hold himself out as being a practicing lawyer. This would preclude his name appearing in any manner on the firm's letterhead or other professional notices, even with the designation of being "inactive," "of counsel," or other similar identification.
The Committee does not conclude that a member of the United States Congress can never actively and regularly practice law, as the Committee cannot interpret and rule upon every circumstance to the end of stating it is impossible for such person to do so. The Committee must, however, express its feeling that it would be most unusual for any member of the United States Congress to be able to "actively and regularly" practice law because of the demands and responsibilities upon him in performance of his duties of public office. The compensation of a member of the United States Congress is much more substantial today than in prior years and the tradition of a senator or congressman of continuing to maintain private law practice while serving in his office may no longer be generally supportable. As dictum, the Committee observes this latter conclusion may well be true of other offices than that of United States congressman. On the other hand, the Committee does recognize that some public office holders, in fact many public office holders, have less demanding positions and may be able to "actively and regularly" practice law, excepting during insignificant periods of time. The CPR does not define "significant" within the framework of DR 2-102(B). The Committee, however, concludes that a "significant" period of time in which a person is not actively and regularly practicing, within contemplation of the rule, normally does include any member of the United States Congress elected to a full term of office or appointed to an expired term of office for that period of time such person is actively and regularly engaged in his public endeavors.