Can a lawyer employed full-time by a firm practice under his own name, and can a Florida Bar member working from an out-of-state office say so on his letterhead?

Plain-English summary

A Florida Bar member, also admitted in New York and practicing as an associate of a New York firm, had handled Florida-law matters and appeared in Florida courts. He wished to use, for Florida clients, a letterhead with his name, his New York address and phone, and "Member of The Florida Bar," and asked whether he could also list designated practice areas and share Florida-practice fees with the New York firm.

The committee first addressed a threshold point: if the inquirer is a full-time employee of the New York firm (under others' direction and control, not sharing in the firm's responsibility and liability), then under DR 2-102(A)(4), DR 2-102(B), and EC 2-11 he may not practice under his own name to the exclusion of the firm name, because doing so would mislead as to his status and as to who has responsibility for and control over his work (citing Opinion 74-20). A letterhead presenting such an employee as a sole practitioner would violate DR 2-102(B) and be contrary to EC 2-11.

The committee then reached the inquirer's questions on the assumption that, as to his Florida practice, he is really a sole practitioner with his own clients. It concluded that, while Florida-based lawyers do not customarily note their Florida admission on letterhead, a lawyer practicing in Florida from a New York office may include "Member of The Florida Bar" to forestall any suggestion he is not, and the Code does not prohibit it; he may also include practice areas under the Florida Designation Plan. Fees earned as a sole practitioner from his Florida practice could be shared with the New York firm subject to the Code's provisions on client consent after full disclosure and division based on a division of service or responsibility (citing ABA Formal Opinion 316).

Currency note

This opinion was issued in 1977, 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 Treat this page as historical context, not current guidance.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 Rules 4-7.21 and 4-1.5 before relying on any specific requirement mentioned here.

Common questions

Q: Can a full-time firm employee practice under his own name without the firm name?

A: The opinion concluded no; doing so would mislead as to his status and as to who is responsible for and in control of his work, contrary to DR 2-102(B) and EC 2-11.

Q: Can a Florida Bar member working from a New York office say "Member of The Florida Bar" on his letterhead?

A: Per the opinion, yes; the Code does not prohibit it, and he may also list practice areas under the Florida Designation Plan, where he is really a sole practitioner as to his Florida work.

Q: Could he share his Florida fees with the New York firm?

A: The opinion concluded yes, subject to client consent after full disclosure and a division of fees based on a division of service or responsibility.

Background and rules framework

The opinion applied DR 2-102(A)(4) and DR 2-102(B) (law firm names and letterheads), EC 2-11 (practicing under one's own or the firm's name), and the Code's fee-division provisions of the former Code of Professional Responsibility. Those subjects correspond to Model Rule 7.5 (firm names and letterhead) and Model Rule 1.5 (fees, including division of fees between lawyers); the current Florida counterparts are Rules 4-7.21 and 4-1.5.

Citations and references

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

• CPR EC 2-11; DR 2-102(A)(4); DR 2-102(B) (firm names; practicing under one's own name)

Other opinions cited:

• Florida Ethics Opinion 74-20
• ABA Formal Opinions 310, 316

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-76-7/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-7-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-7
May 12, 1977
Advisory ethics opinions are not binding.
A lawyer who is practicing law as a full-time employee of a firm may not practice under his own name to the exclusion of his firm name. However, if he also maintains an individual practice the use of his own letterhead would be proper.
A member of The Florida Bar practicing out of a New York office may indicate on his letterhead that he is a member of The Florida Bar and may also include areas of practice under the Florida Designation Plan.
CPR: EC 2-11; DR 2-102(A)(4); DR 2-102(B) [See current 4-7.21]
Opinions: 74-20; ABA Formal 310 and 316
Vice Chairman Lehan stated the opinion of the committee:
A member of The Florida Bar is also admitted to practice in New York and states that he is an associate of a New York firm. He has assisted clients of the firm and his own clients on matters of Florida law and has appeared before Florida courts.
He states that for use in dealing with matters for Florida clients he wishes to use a letterhead containing his name, his New York address and telephone number and the statement, "Member of The Florida Bar." He asks whether he may properly do so and, if so, whether he may also include areas of practice as provided by the Florida Designation Plan. He also asks to what extent, if any, he may share with the New York firm fees derived from his Florida practice.
In responding, there is a threshold question the Committee must first consider. The lawyer refers to his status as that of an associate. Apparently he practices as an employee of the New York firm, is under the direction and control of others, and does not share in the responsibility and liability for all activities of the firm. See ABA Opinion 310.
DR 2-102(A)(4) provides that a lawyer shall not use letterheads except "a letterhead . . . giving . . . the name of his law firm. . . ." DR 2-102(B) provides that a lawyer shall not practice under a "name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more lawyers in the firm" (with exceptions as to professional corporations and the names of deceased or retired members of the firm). EC 2-11 provides that a lawyer "shall practice only under his name, the name of the lawyer employing him, a partnership name composed of the name of one or more of the lawyers practicing in a partnership, or, if permitted by law, in the name of a professional legal corporation. . . ."
We interpret the foregoing to mean that a lawyer who in his practice of law occupies the status of a full-time employee of a firm may not practice under his own name to the exclusion of his firm name because to do so would be misleading as to the status and responsibility of the lawyer and as to the true identity of those having responsibility for and control over the lawyer's work. See Opinion 74-20.
If the inquirer is a full-time employee of the New York firm, we believe his use of any letterhead which indicates he is a sole practitioner would violate DR 2-102(B) and be contrary to EC 2-11.
But, the lawyer also refers to his own clients whom he advises and represents in Florida courts. If, on the other hand, he also has an individual practice, and, in connection with his Florida practice, is really a sole practitioner, we do reach the questions the inquirer poses.
Lawyers who practice in Florida from Florida offices do not customarily include on their letterheads the fact that they are admitted in Florida. There is no need to.
We can understand why a lawyer practicing in Florida from a New York office may want to include on his letterhead the fact that he is a member of The Florida Bar to forestall any inquiry or suggestion that he is not. In any event, we do not believe that the Code of Professional Responsibility prohibits it.
We are, therefore, of the opinion that the lawyer, as a sole practitioner, may properly use the proposed letterhead and also include on it areas of practice under The Florida Designation Plan.
Under those circumstances, the fees he earns as a sole practitioner from his Florida practice could be shared with the New York firm subject to the provisions of the Code as to client consent after full disclosure and with any division of fees being based upon a division of service or responsibility. See ABA Formal Opinion 316.