Can a Michigan law firm keep a retired shareholder's name in the firm name when that lawyer stays on as 'of counsel'?

Plain-English summary

A firm long known as "A, B, & C, P.C." faced the retirement of shareholder A, who would no longer be a shareholder but would continue with the firm in an "of counsel" status as an independent contractor under a written contract. The firm's letterhead, office sign, business cards, and directory listings would describe A as "Retired - Of Counsel" or "Of Counsel." The question was whether the firm could keep A's name in the firm name.

The Committee applied MRPC 7.1 and 7.5, which require that firm names not be false, fraudulent, misleading, or deceptive and that lawyers state or imply a partnership or organization only when that is the fact. Drawing on RI-45 (honesty in describing the nature of a practice), the comments to MRPC 7.5 (allowing names of deceased members where there is continuing succession), and CI-617 and CI-472 (use of a retired member's name with an "of counsel" notation requires a close, regular, personal relationship), the Committee distinguished RI-59, which had barred continued use of a former shareholder's name where it implied a partnership or shareholder status that no longer existed. Following ABA Op. 90-357, the Committee asked whether retaining the retired partner's name while he is of counsel would be false or misleading.

The Committee concluded that, where the firm name is long-established and well-recognized and the letterhead, signs, and advertising clearly reflect A's "of counsel" status, retention of the name would not mislead the public. It set three conditions: the retained firm name must be long-established and well-recognized; the retiring lawyer must maintain an exclusive "of counsel" relationship that is close, regular, and frequent; and the lawyer and firm must describe the lawyer's status as "of counsel" in letterhead, signs, and advertising and clearly indicate the retired-shareholder status.

Currency note

This opinion was issued in 1991 and interprets the Michigan Rules of Professional Conduct as they then stood. The MRPC have since been amended, and 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can a firm keep a retired shareholder's name in the firm name?

A: Per the opinion, yes, on the stated conditions. The Committee held a long-established and well-recognized firm may keep the name of a shareholder who retires but stays "of counsel," provided communications clearly reflect his retired, of-counsel status.

Q: What does "of counsel" require for this to be proper?

A: The opinion, citing CI-472, concluded the relationship must be close, regular, and personal, involving frequent contact, similar to a retired or semi-retired partner who remains available to the firm for consultation and advice.

Q: How is this different from keeping a former shareholder's name generally?

A: The opinion distinguished RI-59, which barred continued use of a former shareholder's name where it implied a partnership or shareholder status that no longer existed; the difference here is the retired lawyer's continuing of-counsel relationship and clear disclosure of retired status.

Background and rules framework

The opinion interprets MRPC 7.1 (Communications Concerning a Lawyer's Services; the Model Rule 7.1 counterpart) and MRPC 7.5 (Firm Names and Letterheads; the Model Rule 7.5 counterpart), including 7.5(d) on stating or implying a partnership only when true. The Committee relied on the comment to MRPC 7.5 allowing deceased members' names where there is continuing succession, and on RI-45, RI-59, CI-617, CI-472, and ABA Op. 90-357.

Citations and references

Rules of Professional Conduct:

• MR 7.1 / MRPC 7.1(a) (communications concerning a lawyer's services)
• MR 7.5 / MRPC 7.5(a), (d) (firm names; stating a partnership only when true)

Other opinions cited:

• RI-45; RI-59: honest description of a practice; former-shareholder name
• CI-472; CI-617: "of counsel" relationship and retired-member name
• ABA Formal Op. 90-357: use of "of counsel" designation

See also

• Mich Ethics Op. RI-144: Firm Name Implying a Partnership
• Mich Ethics Op. RI-246: "Law Offices" on a Solo's Letterhead
• Mich Ethics Op. RI-173: Trade Name From a Historic Building
• Mich Ethics Op. RI-130: Franchising a Law Firm Trade Name

Source

• Landing page: https://www.michbar.org/opinions/ethics/numbered_opinions?OpinionID=960&Type=6

Original opinion text

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

RI-90

June 25, 1991

SYLLABUS

When a named shareholder of a professional corporation retires from the active practice of law and is no longer a shareholder in the firm, but remains associated with the firm in "of counsel" status, the firm may retain the retired shareholder's name in the firm name where the firm name has been long-established and well-recognized and communications about the lawyer's status clearly indicate the lawyer is retired.

References: MRPC 7.1(a), 7.5(a), 7.5(d); RI-45, RI-59; CI-472, CI-617; ABA Op 90-357.

TEXT

For a number of years, a law firm has been known as "A, B, & C, P.C." Shareholder A is retiring from the full-time, active practice of law and will no longer be a shareholder in the firm. He will, however, continue to be associated with the firm in an "of counsel" status performing legal services as an independent contractor pursuant to a written contract. The firm wishes to retain the present firm name without deleting A's name. The firm letterhead, interior office sign, business cards and law directory listings will indicate A's status as either "Retired - Of Counsel" or simply "Of Counsel."

The issue is whether the law firm may continue to use A's name in the firm name under these conditions. The law firm's ability to use the retired shareholder's name under these conditions is governed by MRPC 7.1 and 7.5, which state in pertinent part:

"Rule 7.1(a) A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive . . . .

"Rule 7.5(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1 . . . .

". . .

"(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."

In RI-45, we stated:

"In sum, the rules require that lawyers be honest and clear in the representations which they make to the public regarding the nature of their practice. Firm names, letterhead, office signs, court pleadings, advertisements, and all other communications must accurately describe the nature of the relationship with other lawyers. Consumers of legal services have a right to understand what individual or entity they can look to for the provision of legal services and who they can hold responsible for the manner in which those services are provided."

The comments to MRPC 7.5 recognize that a law firm may be designated by the names of deceased members where there has been a continuing succession in the firm's identity. In an earlier interpretation of Michigan Code of Professional Responsibility DR 1-102(B), and Supreme Court Administrative Order 1978-4, this Committee held in CI-617 that a law firm may continue to use the name of a retired member of the firm where that retired member is no longer in the practice of law and provided that the firm name is accompanied by a notation indicating such person is retired. In that case this Committee held that if that retired lawyer has a continuing relationship with the law firm, the designation "of counsel" should be used.

For an "of counsel" representation to be proper, "the relationship must be a close, regular, personal one, involving frequent contact, similar to that of a retired or semi-retired partner who remains available to the firm for consulting and advice." CI-472. These conditions would be met under the present facts.

RI-59 addressed whether a shareholder in a professional corporation, who ceased to be a shareholder but continued as an employee with the firm, could appear in the firm name, and held it was unethical for the firm to continue to use the name of a former shareholder, since "[t]he inclusion of the name in the firm name implies the existence of a partnership or shareholder status which in fact does not exist." However, RI-59 distinguished its facts from the case of a deceased or retired shareholder's name being used in the firm name, which this Committee said "is explicitly allowed under the comment to MRPC 7.5."

The standard that must be used is whether the use of the name of the retired shareholder, who continues to be of counsel, in the firm name is "false, fraudulent, misleading or deceptive" under MRPC 7.1. In accord, ABA Op 90-357.

Under the present facts the firm name is long established and well recognized. Furthermore, the firm letterhead, office signs, advertising, etc., will clearly reflect A's "of counsel" status. Under such circumstances, this Committee concurs with ABA Op 90-357, that retention of the retired partner's name in the firm name while the partner is of counsel will not mislead or confuse the public regarding the nature of legal services provided.

In summary, where a named shareholder of a long established and well recognized law firm retires, but remains associated with the firm as "of counsel," the firm may continue to utilize the shareholder's name in the firm name, provided that:

• The firm name retained has been long established and well recognized;

• The retiring lawyer maintains the lawyer's exclusive "of counsel" relationship with the firm during continued practice that is close, regular and frequent; and

• The retiring shareholder and the law firm ensure description of the retired shareholder's status as "of counsel" in firm letterhead, signs, advertising, etc., and clearly indicate the lawyer's status as retired shareholder.