Can a Mississippi law firm list a former partner who moved out of state as 'of counsel' or 'tax counsel' on its letterhead?

Plain-English summary

The Committee addressed a partner who was leaving a law firm and moving out of state to maintain a law practice. The departing attorney held an LL.M. in taxation, and the firm planned to keep referring tax questions to him for research and drafting. He would keep his Mississippi Bar membership in good standing. The firm asked whether it could list him on its letterhead as "Of Counsel" and as "Tax Counsel."

On the "of counsel" question, the opinion applied Rule 7.5(a), which bars a firm name, letterhead, or professional designation that violates Rule 7.1's prohibition on false, deceptive, or misleading communications. Following Opinion No. 180 (December 7, 1990), the opinion concluded the firm may list the attorney as "Of Counsel" so long as the relationship between the attorney and the firm is close, regular, and personal, the usage is not otherwise false or misleading, and the attorney remains a Mississippi Bar member in good standing.

On the "tax counsel" question, the opinion concluded the designation would not be permissible unless made in compliance with Rule 7.6(a), which allows a lawyer to communicate certification in a field of law only by an ABA-accredited organization, or by a non-accredited organization if that fact is disclosed along with the fact that Mississippi has no procedure for approving or certifying such organizations. Absent a certifying body, listing "Tax Counsel" would improperly indicate a certification not recognized under the rules. The opinion added that, under Ibanez v. Florida Department of Business, 512 U.S. 136 (1994), the firm may list the attorney as holding an LL.M. in taxation, because that is an earned degree indicating his training in law.

In practice

Under this opinion, a Mississippi firm may carry an out-of-state lawyer as "of counsel" on its letterhead when the lawyer is a Mississippi Bar member in good standing and the relationship is close, regular, and personal. The opinion holds that a "tax counsel" label is improper absent compliance with Rule 7.6(a)'s certification-disclosure requirements, while an earned LL.M. in taxation may be stated.

Common questions

Q: Can a Mississippi firm list a lawyer who moved out of state as "of counsel"?

A: The opinion concluded yes, if the lawyer remains a Mississippi Bar member in good standing and the relationship is close, regular, and personal, and the listing is not otherwise false or misleading (Rules 7.5(a), 7.1).

Q: Can the firm call that lawyer "tax counsel" because he has an LL.M. in tax?

A: Per the opinion, no. Under Rule 7.6(a) a lawyer may state certification in a field only through an ABA-accredited organization (or a non-accredited one with the required disclosures); absent a certifying body, "tax counsel" wrongly implies a recognized certification.

Q: Can the firm state the lawyer's LL.M. in taxation?

A: Yes. The opinion concluded that, under Ibanez v. Florida Department of Business, the firm may list the earned LL.M. degree because it reflects the attorney's training in law.

Background and rules framework

The opinion interprets Mississippi Rules of Professional Conduct 7.5(a) (firm names and letterheads), 7.1 (communications about a lawyer's services), and 7.6(a) (communicating fields of certification), which track the corresponding Model Rules. It also relies on the U.S. Supreme Court's decision in Ibanez regarding truthful statements of earned credentials.

Citations and references

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

• MRPC 7.5(a) (firm names and letterheads) (cf. Model Rule 7.5)
• MRPC 7.1 (false, deceptive, or misleading communications) (cf. Model Rule 7.1)
• MRPC 7.6(a) (communicating certification in a field of law)

Cases:

• Ibanez v. Florida Department of Business & Professional Regulation, 512 U.S. 136 (1994), truthful statement of an earned degree or title.

Other opinions cited:

• Mississippi Bar Opinion No. 180 (Dec. 7, 1990): two firms listing each other as "of counsel."

See also

• MS Bar Ethics Op. 48: Old Firm Name After Split
• MS Bar Ethics Op. 223: Paralegal 'CLA' Credential
• MS Bar Ethics Op. 222: Practicing as a PLLC

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/198/
• Original PDF: https://www.msbar.org/media/1057/et_op_198-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 198

OF THE MISSISSIPPI BAR

RENDERED April 11, 1992

AMENDED April 06, 2013

FIRM NAMES AND LETTERHEADS - It is proper for a law firm to list on its letterhead the name of an out-of-state attorney as "of counsel" if that attorney is a member in good standing of the Mississippi Bar and there is a close, regular and personal relationship between the attorney and the law firm, but the firm may not list the attorney as "tax counsel."

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

A partner in a law firm is withdrawing from the law firm and moving out of state where he will maintain a law practice. The attorney has a L.L.M. in Taxation, and the firm from which he is withdrawing anticipates maintaining a continuing professional relationship in which the attorney is referred taxation questions for research and document drafting. The attorney will maintain his membership in The Mississippi Bar and will comply with all of the requirements thereof.

The Ethics Committee has been requested to opine as to whether the law firm from which the attorney has withdrawn can list the attorney as "Of Counsel" on its letterhead, and further, whether the attorney may be designated "Tax Counsel" on the law firm's letterhead.

M.R.P.C. 7.5(a) states that: A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. Rule 7.1 prohibits an attorney from making a false, deceptive or misleading communication about the lawyer or the lawyer's services.

In Ethics Opinion Number 180 (December 7, 1990), this Committee determined that it was ethically permissible for two law firms to list each other as "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. Assuming the relationship between the withdrawing attorney and the firm from which he is withdrawing meets the above criteria, and the attorney maintains his membership in good standing in The Mississippi Bar, it would be permissible for the firm to list the attorney as "Of Counsel".

However, listing the attorney as "Tax Counsel' would not be permissible unless made in compliance with Rule 7.6(a), MRPC, which provides that a lawyer may communicate the fact that he or she is certified in a field of law by a named organization or authority if certification is granted by an organization accredited by the American Bar Association. A lawyer may also indicate certification in a field of law by an organization not accredited by the American Bar Association if that fact is disclosed and if it is further disclosed that Mississippi has no procedure for approving, certifying, or designating organizations and authorities. In the absence of a certifying body, the listing of "Tax Counsel" would be improper as it indicates a certification not recognized under the rules.

However, Ibanez v. Fla. Dept. of Bus., 512 U.S. 136 (1994) permits the use of an earned degree or title derived therefrom indicating an attorney's training in law, and therefore the firm may list the attorney as holding an L.L.M. in Taxation.