Can a Florida firm list a lawyer who is not admitted in Florida on its letterhead as 'Of Counsel' if it discloses the non-admitted status?

Plain-English summary

A Florida firm asked how it could ethically advertise an affiliation with a New York patent lawyer who was not admitted in Florida. The New York lawyer would not be a member or associate of the Florida firm but would occupy space in its offices and contribute to rent and expenses while continuing to practice with his New York firm. The Florida firm's motive was to obtain referrals on matters outside the patent specialty, and it especially wanted to list the New York lawyer as "Of Counsel" on its letterhead with a disclosure of his non-Florida status. There was no suggestion the arrangement was a true interstate partnership of the kind recognized by DR 2-102(D) and discussed in ABA Opinion 316 and Florida Opinion 70-55.

The committee concluded the Florida firm could not include the New York lawyer's name among the firm's lawyers on its letterhead or shingle. Except for true interstate partnerships, a Florida firm should not list a lawyer not admitted in Florida, even with disclosure. The committee explained that even an admitted lawyer's name cannot be listed unless he is a member, partner, associate, or "Of Counsel" as sanctioned by custom, and that "Of Counsel" normally designates a semi-retired lawyer who was formerly a regular member or associate of the firm, which did not describe this affiliation. Mere office-sharing or mutual-referral arrangements do not create a relationship that may be advertised on a firm's letterhead and professional notices.

Currency note

This opinion was issued in 1972, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied DR 2-102 of the former Code of Professional Responsibility, which has since been replaced; the bar's note on the opinion states that lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22. Treat this page as historical context, not current guidance. Verify against current Rule 4-7.21 before relying on any specific requirement mentioned here.

Common questions

Q: Could the firm list the out-of-state lawyer as "Of Counsel" if it disclosed he was not admitted in Florida?

A: Under this opinion, no. Disclosure of the non-admitted status did not cure the problem where the arrangement was not a true interstate partnership or a true of-counsel relationship.

Q: What did the committee say "Of Counsel" actually means?

A: It said the term normally designates a semi-retired lawyer who was formerly a regular member or associate of the firm, and that it did not embrace the office-sharing and referral arrangement described here.

Q: Does sharing office space or trading referrals justify a letterhead listing?

A: No. The committee stated that mere arrangements for sharing office space or for mutual referrals of clients or work do not create a relationship that may properly be advertised on a firm's letterhead and professional notices.

Background and rules framework

The opinion applied DR 2-102 of the former Code of Professional Responsibility, including the "Of Counsel" designation in DR 2-102(A)(4) and the true-interstate-partnership recognition in DR 2-102(D). In current Florida practice the regulation of firm names, letterheads, and advertising is in Rules 4-7.11 through 4-7.22 (chiefly Rule 4-7.21 for firm names and letterheads); the Model Rule analogues are Rules 7.1 and 7.5.

Citations and references

Rules of Professional Conduct:

• CPR DR 2-102; DR 2-102(A)(4) ("Of Counsel"); DR 2-102(D) (interstate partnerships)

Other opinions cited:

• Florida Opinions 65-24 (since withdrawn), 65-53 (since withdrawn), 66-64 (since withdrawn), 67-7 (since withdrawn), 69-30 (since withdrawn), 70-35 (since withdrawn), 70-36 (since withdrawn), 70-55
• ABA Formal Opinion 316

See also

• FL Bar Ethics Op. 76-34: Out-of-State "Of Counsel" Address on Letterhead
• FL Bar Ethics Op. 74-48: An Interstate Partnership Firm Name in Florida
• FL Bar Ethics Op. 72-41: "Of Counsel" and Imputed Conflicts

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-72-29/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-72-29-3.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 72-29
August 11, 1972
Advisory ethics opinions are not binding.
A Florida law firm may not include on its shingle or letterhead the name of a lawyer who is not admitted in Florida even with disclosure of the non-admitted status when the arrangement between the lawyer and the firm does not constitute a true interstate partnership or a true "of counsel" relationship.
Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22.
CPR: DR 2-102
Opinions: 65-24, 65-53, 66-64, 67-7, 70-35, 70-36, 70-55; ABA Formal 316
Committeeman Kittleson stated the opinion of the committee:
A Florida firm of lawyers asks how it may ethically advertise an affiliation between the firm and a New York patent lawyer, not admitted to practice in Florida, when the New York lawyer will not be a member or associate of the Florida firm, but will occupy space in the Florida firm's offices and will contribute appropriately to the rent and office expenses. The New York lawyer is a member of a New York law firm, and will continue to practice law as a member of the New York firm. The Florida firm's motive for the affiliation is the opportunity for obtaining referrals from the New York lawyer and the New York firm with respect to matters falling outside the patent specialty. The Florida firm seeks especially to list on its letterhead the New York lawyer's name as "Of Counsel," accompanied by a disclosure of his non-Florida admitted status. There is no suggestion that the arrangement would constitute a true interstate partnership as discussed in American Bar Association Opinion 316 (1967) and Florida Opinion 70-55, and as recognized by DR 2-102(D).
On the facts stated, the Florida firm cannot, on its letterhead or shingle, properly include among the names of the lawyers the name of the New York lawyer. Except with respect to true interstate partnerships (to which special considerations apply), a Florida firm should not list as one of its lawyers a lawyer who is not admitted to practice in Florida, even with disclosure of the non-admitted status. Florida Opinions 70-35 [since withdrawn], 67-7 [since withdrawn], 65-53 [since withdrawn] and 65-24 [since withdrawn]. Moreover, even if a lawyer is admitted to practice in Florida, his name cannot properly be included in a Florida firm's letterhead, shingle or law listing when he is not a member, partner or associate of the firm, unless he is "Of Counsel," as that term has been sanctioned by custom. See DR 2-102(A)(4). The term "Of Counsel" is hardly one of precision, but as used on letterheads it normally designates a semi-retired lawyer who was formerly a regular member or associate of the firm. It does not embrace the affiliation presented in this inquiry. See Florida Opinions 70-36 [since withdrawn] and 66-64 [since withdrawn]. And this is clearly so when the lawyer in question is not admitted to practice in Florida. Florida Opinion 69-30 [since withdrawn]. Mere arrangements for sharing office space, or for mutual referrals of clients or work, do not create a relationship that may be properly advertised on a law firm's letterhead and professional notices. Henry S. Drinker said in his book, Legal Ethics, "A lawyer's stationery should not be used to advertise his connections with lawyers in other places or to bring their names before his correspondents."