Can a law firm list on its letterhead lawyers who rent space and take referrals but are not employees?

Plain-English summary

A professional association used a letterhead reading "John Doe, P.A." with the names of two other Florida Bar members on the right side. The sole stockholder referred legal matters to those two lawyers continuously, but they rented space from the association and maintained their own practices. The association asked whether it could properly include their names on its letterhead.

The committee concluded it could not, and that DR 2-102(A)(4) prohibited the practice. That provision allowed a letterhead to include members of a firm, associates, and an "Of Counsel" designation (not applicable here), and did not define "associates," but EC 2-13 stated that a lawyer should not hold himself out as a partner or associate if he merely shares offices with another lawyer. Drawing on ABA Opinion 310 and In re Sussman and Tanner, the committee read "associates" in Canon 2 to mean lawyer-employees of another lawyer, a firm, or non-stockholder lawyer-employees of a professional association, not the rental-and-referral relationship described.

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; lawyer advertising and letterhead rules now appear in Rules 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 Treat this page as historical context, not current guidance.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: Can a firm put space-renting lawyers who take its referrals on the firm letterhead?

A: The opinion concluded no; the firm should list only lawyers who are employees in some capacity (member, associate, or of counsel).

Q: What does "associate" mean for letterhead purposes?

A: Per the opinion, it refers to lawyer-employees of another lawyer or firm (or non-stockholder lawyer-employees of a professional association), not lawyers who merely share space or take referrals.

Background and rules framework

The opinion applied Canon 2, EC 2-13, and DR 2-102(A)(4) of the former Code of Professional Responsibility, governing what a firm letterhead may represent about its lawyers. Those provisions 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 Canon 2; EC 2-13; DR 2-102(A)(4) (letterhead; who may be listed)

Cases:

• In re Sussman and Tanner, 241 Ore. 246, 405 P.2d 355 (1965), meaning of "associates" on a letterhead

Other opinions cited:

• ABA Formal Opinion 310

See also

• FL Bar Ethics Op. 76-42: Letterhead After a Merger
• FL Bar Ethics Op. 77-17: Letterhead Partner-Associate

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-76-8/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-76-8-2.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 76-8
February 28, 1977
Advisory ethics opinions are not binding.
In order to avoid the possibility of misleading the public, a law firm should not list on its letterhead the name of any lawyer who is not an employee of the law firm in some capacity (member, associate or of counsel).
Note: Lawyer advertising rules are now in Rules Regulating The Florida Bar 4-7.11 through 4-7.22.
CPR: Canon 2; EC 2-13; DR 2-102(A)(4)
Opinion: ABA Formal 310
Case: In Re Sussman and Tanner, 241 Ore. 246, 405 P.2d 355 (1965).
Chairman Sullivan stated the opinion of the committee:
A professional association uses a letterhead reading "John Doe, P.A." Below, on the left side, are the address and telephone number. Below, on the right side, just opposite the address, are the names of two members of The Florida Bar. It is their status relative to the professional association that prompts this inquiry.
The sole stockholder of that professional association advises that he refers legal matters to the two lawyers continuously, as distinguished from occasionally. They rent space from the professional association, but maintain their own law practices. We are asked if the professional association may properly include the names of the two lawyers on its letterhead.
The Committee is of the opinion that it may not and that the practice is prohibited by DR 2-102(A)(4).
That provision allows only the inclusion on a letterhead of members of a law firm and associates and an "Of Counsel" designation not applicable here. That provision does not define "associates," but EC 2-13 does state what an associate is not:
In order to avoid the possibility of misleading persons with whom he deals, a lawyer should be scrupulous in the representation of his professional status. He should not hold himself out as being a partner or associate of a law firm if he is not one in fact, and thus should not hold himself out as a partner or associate if he only shares offices with another lawyer.
EC 2-13 was derived in part from ABA Opinion 310 and in part from In re Sussman and Tanner, 241 Ore. 246, 248, 405 P.2d 355, 356 (1965). Opinion 310 stated that it was proper to list as associates lawyers who were employed by a law firm but who did not share responsibility or liability for acts of the firm but improper for two lawyers who shared office space and some of the costs but not responsibility and liability of each other to describe themselves as associates. In re Sussman and Tanner stated that the word "associates" had acquired a special significance in connection with the practice of law and that to use it on a letterhead to refer to other than lawyer-employees would be misleading.
We believe that "associates" as used in Canon 2 refers to lawyer-employees of another lawyer or of a law firm or to non-stockholder lawyer-employees of a professional association but not to the relationship described here.