Can two Mississippi law firms list each other as 'Of Counsel' on their letterheads and in directories?

Plain-English summary

The Committee addressed an attorney who was a partner in both law firm A and law firm B, where each firm wanted its letterhead and directory listings to reflect that each firm was "Of Counsel" to the other. The question was whether such an arrangement is ethically permitted.

The opinion noted the Committee had never directly addressed the question and that the Mississippi Rules of Professional Conduct did not speak to it, but that recent authority approved the arrangement. It relied on ABA Formal Opinion 90-357 (May 10, 1990), which concluded that using the title "Of Counsel," or variants, to identify the relationship of a lawyer or firm with another lawyer or firm is permissible as long as the relationship is close, regular, and personal and the use of the title is not otherwise false or misleading.

The opinion observed that the ABA had previously stated, in Informal Opinion 1173 (1971) and Formal Opinion 330 (1972), that a firm could not be "Of Counsel" to another firm because the term connoted an individual, but that Formal Opinion 90-357 withdrew those opinions. The opinion agreed lawyers should not be restricted regarding relationships commonly designated "Of Counsel," and concluded the designation is permissible where the relationship is close, regular, and personal and not false or misleading. It added that firms using the designation must scrupulously adhere to the standards on disclosure of confidential information and conflicts of interest as if each were a single firm, with the arrangement entailing reciprocal disqualification of all lawyers in each firm.

Currency note

This opinion was issued in 1990, interpreting the Mississippi Rules of Professional Conduct (adopted effective June 22, 1994, and amended February 5, 1999). Mississippi did not adopt the ABA's 2002 Ethics 2000 revisions wholesale, but 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: Can two firms list each other as "Of Counsel"?

A: The opinion concluded yes, as long as the relationship between them is close, regular, and personal and the usage of the title is not otherwise false or misleading.

Q: Does an "Of Counsel" relationship between firms affect conflicts of interest?

A: Per the opinion, yes. Firms using the designation must adhere to the standards on confidential information and conflicts as if each were a single firm, and the arrangement entails reciprocal disqualification of all lawyers in each firm.

Q: Was a firm always allowed to be "Of Counsel" to another firm?

A: The opinion noted that earlier ABA opinions had said a firm could not be "Of Counsel" to another firm, but that ABA Formal Opinion 90-357 withdrew those opinions and approved the arrangement.

Background and rules framework

The opinion addresses the use of "Of Counsel" designations on letterheads and in directories, a subject governed by the firm-names and misleading-communications rules (Model Rules 7.5 and 7.1). The opinion observed that the Mississippi Rules of Professional Conduct did not directly address the question and relied on ABA Formal Opinion 90-357.

Citations and references

Rules of Professional Conduct (Mississippi; cf. Model Rules):

• MRPC 7.5 (firm names and professional designations) (cf. Model Rule 7.5); the opinion noted the Mississippi rules did not directly address the question.

Other opinions cited:

• ABA Formal Opinion 90-357 (May 10, 1990): firm-to-firm "Of Counsel" designations.
• ABA Informal Opinion 1173 (1971); ABA Formal Opinion 330 (1972) (both withdrawn by 90-357).
• ABA Informal Opinions 84-351 (1984) and 1315 (1975): affiliated firms and reciprocal "Of Counsel" arrangements.

See also

• MS Bar Ethics Op. 181: One Firm Name on Letterhead
• MS Bar Ethics Op. 198: 'Of Counsel' on Letterhead
• MS Bar Ethics Op. 48: Old Firm Name After Split

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/180/
• Original PDF: https://www.msbar.org/media/1447/35a_et_op_180.pdf

Original opinion text

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

ETHICS OPINION NO. 180

OF THE MISSISSIPPI BAR

RENDERED December 07, 1990

FIRM NAMES AND LETTERHEADS- It is not improper for a law firm to designate another law firm on its letterhead as "Of Counsel" as long as the relationship is a close, regular and personal one and the usage of the title is not otherwise false or misleading.

The Ethics Committee of the Mississippi State Bar has been requested to render an opinion on the following facts:

An attorney who is a partner in law firm A is also a partner in law firm B. Each law firm desires to have and reflect on their letterhead and in legal directories that each firm is "Of Counsel" to the other. The question presented is whether or not such an arrangement is ethically permitted.

Although this question has never been directly addressed by the Ethics Committee and the Mississippi Rules of Professional Conduct to which Mississippi attorneys must adhere do not speak to this inquiry, recent authority facing this question has approved of this arrangement. ABA Formal Opinion 90-357 (May 10, 1990) concluded that the use of the title "Of Counsel", or variants of that title in identifying the relationship of a lawyer or law firm with another lawyer or firm, is permissible as long as the relationship between the two is a close, regular and personal relationship and the use of the title is not otherwise false or misleading.

The ABA had previously stated that a law firm could not be "Of Counsel" to another lawyer or law firm. See Informal Opinion 1173, (February 19, 1971), and Formal Opinion 330, (August, 1972). These two Opinions stated that the term "Of Counsel" connotes an individual rather than a firm. However, Formal Opinion 90-357 withdrew those Opinions and found that the ABA Committee on Ethics on Professional Responsibility could not now perceive of any reason why a firm should not be of counsel to another firm. Moreover, the ABA Committee noted it had previously held in Informal Opinion 84-351 (1984), that two law firms could ethically present themselves as "affiliated" or "associated" with each other, and in Informal Opinion 1315 (1975), the Committee gave its approval to arrangements whereby two firms effectively became "Of Counsel" to each other by designating a partner of the other firm as "Of Counsel" to itself.

The Ethics Committee of the Mississippi State Bar agrees with the ABA in that we should not be restricted regarding relationships that are commonly designated by the term "Of Counsel". As long as the relationship between the two firms is close, regular and personal, and the usage of the title is not otherwise false or misleading, then the use of the term would be permissible. It should be further noted that the law firms using this designation with each other must scrupulously adhere to the applicable standards regarding disclosure of confidential information and conflicts of interest as if each were a single firm, and the arrangement would entail all the attributes of reciprocal disqualification of all lawyers in each firm.