Can a lawyer who serves as a state legislator and works only intermittently with a firm be held out as 'of counsel' to that firm?

Plain-English summary

A firm was developing a relationship with an Illinois legislator who would use the firm's office as a base for his own clients and for some of the firm's clients, but who, because of his legislative duties, would be present only intermittently. He kept no independent law office. The firm asked whether he could be termed "of counsel" or "counsel."

The committee split the question in two. First, did the relationship fit the traditional "of counsel" definition? The committee answered yes, finding the proposed relationship continuing in nature and comparable to or stronger than the semi-retired and consultation arrangements it had approved in prior opinions (citing Opinion 776 for a comprehensive discussion, and Opinions 373, 433, and 657 and ABA Formal Opinion 330). It noted the relationship lacked the infirmities, such as a separate practice or a mere forwarder-receiver tie, that had defeated the designation in other opinions.

Second, did Rule 2-102(a), which bars a lawyer who assumes a legislative post from letting his name remain in the firm name during any significant period he is not "actively and regularly practicing law as a member of the firm," preclude the "of counsel" label? The committee acknowledged contrary authority (ABA Informal Opinions 1134 and 1205 and CBA Opinion 71-9 had applied the "actively and regularly" standard to "of counsel" designations), but disagreed. It read Rule 2-102(a) as designed only to stop a legislator from holding himself out as something he is not, the active member of a firm, and reasoned that no deception occurs when a person who genuinely performs "of counsel" functions is described that way. It added that requiring the same level of involvement for both designations would render the "of counsel" label superfluous. Finally, because "counsel" has no settled distinct meaning and is treated as interchangeable with "of counsel," the committee advised that only "of counsel" be used to avoid confusion.

Currency note

This opinion was issued in 1982, under the former Illinois Code of Professional Responsibility and before Illinois adopted the 2010 Rules of Professional Conduct. The ISBA Board of Governors affirmed the opinion in July 2010 as generally consistent with the 2010 Rule (Rule 7.5(c)), citing also ABA Formal Opinion 90-357, while cautioning that the specific standards referenced may differ from the 2010 Rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.

Common questions

Q: Can a sitting legislator be listed as 'of counsel' to a law firm in Illinois?

A: The opinion concluded yes, where the relationship is genuinely continuing and satisfies the traditional "of counsel" test, even though the legislator's intermittent activity falls short of actively and regularly practicing as a firm member.

Q: Doesn't the rule barring a legislator's name in the firm name also bar 'of counsel'?

A: The committee read Rule 2-102(a) to bar only holding the legislator out as a firm member, reasoning that an accurate "of counsel" designation creates no deception; it expressly disagreed with ABA and CBA opinions that had applied the "actively and regularly" standard to "of counsel."

Q: Should the firm use 'counsel' or 'of counsel'?

A: Per the opinion, only "of counsel" should be used, because "counsel" has no generally recognized distinct meaning and is treated as interchangeable, so using it risks confusion.

Background and rules framework

The opinion applied former Illinois Code Rule 2-102(a) (designation of lawyers who assume legislative or public posts) and the traditional "of counsel" definition drawn from former DR 2-102(a)(4). The Board's 2010 affirmation maps the analysis to current Illinois Rule of Professional Conduct 7.5(c) (firm names and lawyers holding public office), corresponding to ABA Model Rule 7.5, and references ABA Formal Opinion 90-357 on use of the "of counsel" title.

Citations and references

Rules of Professional Conduct:

• Illinois Code Rule 2-102(a); former DR 2-102(a)(4), 2-102(b) (applied in the opinion)
• Illinois RPC 7.5(c) (2010 equivalent per the Board's affirmation)
• MR 7.5 (firm names and letterheads); MR 1.0 (terminology)

Other opinions cited:

• ISBA Opinions 352, 373, 433, 657, 776: prior "of counsel" relationship analyses
• ABA Formal Opinion 330; ABA Informal Opinions 710, 1134, 1205: "of counsel" and legislator designations
• CBA Opinion 71-9: applied the "actively and regularly" standard to an "of counsel" designation

See also

• ISBA Ethics Op. 03-02: Firm Name and Of Counsel Relationships
• ISBA Ethics Op. 20-04: Named Partner No Longer Practicing
• ISBA Ethics Op. 22-04: Deceased or Retired Partners' Names in a Firm Name

Source

• Landing page: https://www.isba.org/ethics/opinions/817