When a named partner stops practicing law for a non-legal career, must the firm drop their name, and can it list them as 'Of Counsel'?

Plain-English summary

Two spouses, both Illinois lawyers, were the only partners in a two-lawyer LLP. One spouse stopped practicing to become a high-school college-admissions counselor, kept his law license, and considered returning someday. The firm asked whether it must drop his name and his "Partner" designation, whether it could relabel him "Of Counsel," and whether it must add "LLP" to the name on the letterhead.

The committee applies Rules 7.5 (firm names and letterheads) and 7.1 (false or misleading communications). Under Rule 7.5(d), lawyers may state or imply they practice in a partnership only when that is the fact, and under Illinois case law a partnership turns on sharing profits and contributing services to a common venture. Because the departed spouse no longer shares profits or contributes services, the committee concludes the two are no longer partners, so holding them out as a partnership would imply a partnership that does not exist and mislead the public.

The committee separates the firm name from the partnership question. Citing Comment 1 to Rule 7.5 and ISBA Opinions 03-02 and 865, it explains a firm may keep a retired lawyer's name if the firm is a bona fide successor, use of the name is authorized, and the firm shows the retired status (for example, noting the years the lawyer practiced) so the public is not misled. On "Of Counsel," the committee draws on Opinion 16-04 and ABA Formal Opinion 90-357: the designation requires a close, regular, and continuing relationship, more than an occasional consultant or a single-case arrangement. On these facts the departed lawyer has no such continuing relationship, so labeling him "Of Counsel" would mislead. Finally, the committee notes that an LLP's name must end with a statutory designation (such as "LLP") under 805 ILCS 206/1002.

In practice

Under this opinion, a firm whose only other partner has left practice cannot continue to present the two as a partnership, and cannot move that lawyer to an "Of Counsel" line unless the relationship is restructured into the continuing, regular relationship the designation requires. The opinion treats the firm name as a separate question: the departed lawyer's name may remain only on the limited retired-partner footing the committee describes, with the retired status disclosed so the public is not misled, and an LLP must carry the statutory "LLP"-type designation in its name.

Common questions

Q: If a named partner stops practicing, must the firm change its name?

A: Not necessarily. The committee says a retired lawyer's name may stay in the firm name where the firm is a bona fide successor and discloses the retired status (for instance, the years practiced) so the public is not misled, citing Rule 7.5 Comment 1 and ISBA Opinions 03-02 and 865.

Q: Can the firm keep holding the two lawyers out as a partnership?

A: No. Under Rule 7.5(d) lawyers may imply a partnership only when one exists, and the committee concludes that a partner who no longer shares profits or contributes services is no longer a partner, so the representation would mislead under Rules 7.1 and 7.5.

Q: Can the departed lawyer be listed as "Of Counsel"?

A: Only with a genuine continuing relationship. The committee says "Of Counsel" requires a close, regular, and continuing relationship (Opinion 16-04; ABA Formal Op. 90-357), which these facts do not show, so the label would be misleading.

Q: Does the firm have to put "LLP" in its name?

A: The committee notes an LLP's name must end with one of the statutory designations such as "LLP" under 805 ILCS 206/1002; using anything else would mislead the public.

Background and rules framework

The opinion interprets Illinois Rules of Professional Conduct 7.5 (firm names and letterheads, including 7.5(d) on implying a partnership) and 7.1 (no false or misleading communication about the lawyer or the lawyer's services), which track Model Rules 7.1 and 7.5. It relies on Illinois partnership case law defining a partnership by shared profits and contributed services, and on prior ISBA opinions (03-02, 865, 16-04) and ABA Formal Opinion 90-357 for the retired-partner and "Of Counsel" standards. The Illinois LLP naming requirement comes from 805 ILCS 206/1002.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / IL RPC 7.5 (firm names and letterheads; 7.5(d) partnership)
• MR 7.1 / IL RPC 7.1 (false or misleading communications)

Statutes:

• 805 ILCS 206/1002 (LLP name designation requirement)

Cases:

• Estate of Goldstein, 293 Ill. App. 3d 700, 688 N.E.2d 684 (1st Dist. 1997), partnership elements
• Rizzo v. Rizzo, 3 Ill. 2d 291, 120 N.E.2d 546 (1954), sharing of profits as the essential test

Other opinions cited:

• ISBA Opinions 776, 817, 840, 865, 03-02, 16-04 (retired-partner names; "Of Counsel")
• ABA Formal Op. 90-357 (1990) ("Of Counsel" designation)

See also

• ISBA Ethics Op. 22-04: Deceased or Retired Partners' Names in a Firm Name
• ISBA Ethics Op. 16-04: Fee Division and Conflict Rules for "Of Counsel"
• NY State Bar Op. 1028: Firm Name, Letterhead, and Business-Card Designations

Source

• Landing page: https://www.isba.org/ethics/opinions/2004