Can 'Of Counsel' describe a brand-new relationship with a firm, not just a former partner or associate?

Plain-English summary

The inquirer, a full-time law professor recognized as an authority in his specialty, had consulted with various firms on a case-by-case basis. With the law school's consent, he contracted with one firm to make his services available, agreeing he would not be a partner or associate of that or any other firm and would consult only in his contractual capacity with that firm. He would be in the firm's offices on weekends as needed and consult during the week by telephone and letter, and asked whether he could properly be designated "Of Counsel."

A majority of the committee concluded the designation was permissible, subject to DR 2-102(B) and EC 2-11's prohibitions on a name misleading as to the identity, responsibility, and status of the lawyers. It noted DR 2-102(A)(4) allows the "Of Counsel" designation where a lawyer has a continuing relationship with a firm other than as partner or associate, and that prior opinions had most often used the term for a former member continuing in a less active role. The majority declined to limit the term to lawyers with a prior relationship and would allow it for a new relationship, if otherwise appropriate; here, the lawyer's daily availability (in person on weekends, by phone and letter during the week) and his agreement not to practice elsewhere were sufficient to meet the "continuing relationship" requirement. A minority read "continuing relationship" to require a prior relationship and disapproved the designation, citing the danger of firms hiring former judges, public officials, and other luminaries in a way that misleads the public (citing ABA Informal Opinion 1189).

Currency note

This opinion was issued in 1976, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Code of Professional Responsibility, which has since been replaced. Treat this page as historical context, not current guidance.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: Can "Of Counsel" describe a brand-new relationship, not just a former partner or associate?

A: The opinion concluded yes; a majority would allow "Of Counsel" for a new continuing relationship between a lawyer and a firm, if otherwise appropriate.

Q: What made the relationship here a "continuing" one?

A: Per the opinion, the lawyer's daily availability (in person on weekends, by telephone and letter during the week) and his agreement not to practice independently or with any other firm.

Q: What limit did the committee place on the designation?

A: The opinion approved it subject to DR 2-102(B) and EC 2-11, which prohibit a name that is misleading as to the identity, responsibility, and status of the lawyers.

Background and rules framework

The opinion applied DR 2-102(A)(4), DR 2-102(B), and EC 2-11 of the former Code of Professional Responsibility, governing the "Of Counsel" designation and law firm names. Those subjects correspond to Model Rule 7.5 (firm names and letterhead) and Model Rule 7.1 (no misleading communications about a lawyer's services); the current Florida counterpart is Rule 4-7.21.

Citations and references

Rules of Professional Conduct (as cited, former Code):

• CPR DR 2-102(A)(4); DR 2-102(B); EC 2-11 ("Of Counsel" designation; firm names)

Other opinions cited:

• Florida Ethics Opinions 66-64 (since withdrawn), 70-29, 70-36 (since withdrawn), 71-49, 72-29
• ABA Informal Opinion 1189 (1971)

See also

• FL Bar Ethics Op. 76-34: Out-of-State Address on Letterhead
• FL Bar Ethics Op. 76-8: Who Belongs on the Letterhead

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-75-41/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-75-41-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 75-41
March 30, 1976
Advisory ethics opinions are not binding.
The designation "Of Counsel" may be used to describe either a continuing relationship between a firm and a former partner or associate or a new relationship formed between a lawyer and another lawyer or law firm.
CPR: DR 2-102(A)(4), DR 2-102(B), EC 2-11
Opinions: 66-64, 70-29, 70-36, 71-49, 72-29 ABA Informal Opinion 1189
Vice Chairman Sullivan stated the opinion of the committee:
This inquiry involves an interpretation of DR 2-102(A)(4) regarding permissible use on letterheads of the designation "Of Counsel."
The inquirer, a member of The Florida Bar, is employed as a professor of law at one of the law schools in the state. He is recognized as an authority in his area of specialization and has consulted on a case-by-case basis with various law firms in the state on problems involving his particular field.
With the consent of the law school, he has entered into a contract with a law firm in the state to make his services available to that firm. He is neither a partner nor associate of that firm and, by agreement, will not be a partner or associate of any other lawyer or law firm nor will he consult with or give legal advice to any client except in his contractual capacity with the firm with which he has become affiliated.
Although he teaches law full time, he will be in the law firm's offices weekends as he is needed and will consult and give legal advice during the week by telephone and letter.
He asks whether he may properly be designated "Of Counsel" to the firm. A majority of the Committee is of the opinion that this designation is permissible, but in approving the designation, does so subject to the prohibitions in DR 2-102(B) and EC 2-11 about practicing under a name that is misleading as to identity of the lawyers and their responsibility and status.
DR 2-102(A)(4) provides only that a lawyer may be designated "Of Counsel" on a letterhead if he has a continuing relationship with a lawyer or law firm other than as partner or associate.
In prior opinions, the Committee has indicated that the term "Of Counsel" is hardly one of precision but has most frequently been used to describe the relationship for a former member or associate of a firm who continues his relationship with the firm but in a less active role. Opinions 66-64 [since withdrawn], 70-29, 70-36 [since withdrawn], 71-49, 72-29.
Those opinions did not deal with an interpretation of "continuing relationship" as used in DR 2-102(A)(4). The Committee majority would not limit its interpretation to include only lawyers with a prior relationship with the firm either as partners or associates but would allow it to be used to designate a new relationship between a lawyer and another lawyer or law firm, if otherwise appropriate.
Here the lawyer will be available to the law firm on a daily basis, in person on weekends, by telephone and letter during the week. He will not practice law independently or with any law firm other than the firm with which he has contracted. The Committee majority believes that this is sufficient to meet the "continuing relationship" requirement.
A minority of the Committee, relying upon Opinions 66-64, 70-29, 70-36 interpret "continuing relationship" as used in DR 2-102(A)(4) [as referring to] to situations where there was a prior relationship between lawyer and law firm and disapprove the "Of Counsel" designation here for the further reason that they believe approving its use would lead to the danger of law firms hiring former judges, public officials and other luminaries and result in misleading the public about the nature of the relationships. See ABA Informal Opinion 1189 (1971).