Can a New Jersey lawyer, including a retired judge, serve 'of counsel' to more than one law firm at the same time?

Plain-English summary

The Committee was asked whether an attorney, including one retired from judicial office, may serve "of counsel" to more than one law firm. The proposed arrangement involved a retired Superior Court judge, already "of counsel" to a firm in one county, becoming "of counsel" to a firm about to be formed in another county. The Committee noted that it had become a common and accepted practice in New Jersey for a retired judge to act "of counsel" to a firm.

The Committee reviewed DR 2-102. Before the April 1, 1979 amendment, paragraph (4) provided that a letterhead may give the names and dates of deceased and retired members and that a lawyer may be designated "of counsel" where he has a continuing relationship with a lawyer or firm other than as a partner or associate. The revised rule contained no prohibition on acting "of counsel." DR 2-102(B), which applied, bars practicing under a name misleading as to the identity, responsibility, or status of those practicing under it, or otherwise false, fraudulent, misleading, or deceptive within DR 2-101(B), or contrary to law.

The Committee concluded there is no legal or ethical prohibition against a lawyer being a member of more than one firm, nor against acting "of counsel" to more than one firm, provided the association complies with and is conducted in every respect in accordance with all applicable disciplinary rules.

Currency note

This opinion was issued in 1979, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and predates the 1984 replacement of the Disciplinary Rules by the RPCs. It applied DR 2-102(B); in current New Jersey terms the firm-name and letterhead rule corresponds to RPC 7.5. Treat this page as historical context, not current guidance.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 lawyer be "of counsel" to two firms at once?

A: Yes. The opinion found no legal or ethical prohibition, provided the arrangement complies in every respect with all applicable disciplinary rules.

Q: Does it matter that the lawyer is a retired judge?

A: No. The opinion noted it had become common and accepted in New Jersey for a retired judge to act "of counsel," and applied the same conclusion.

Q: What is the limiting condition?

A: DR 2-102(B): the practice name must not be misleading as to the identity, responsibility, or status of those practicing under it, or otherwise false or deceptive.

Background and rules framework

The opinion applied DR 2-102, including the "of counsel" provision and the DR 2-102(B) prohibition on misleading practice names. In current New Jersey terms, the firm-name and letterhead rule corresponds to RPC 7.5. The holding was permissive: multiple "of counsel" relationships are allowed where each complies with the disciplinary rules and the public is not misled.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / NJ RPC 7.5 (firm names and letterheads; "of counsel")
• DR 2-102, DR 2-102(B); DR 2-101(B) (as in effect 1979)

See also

• NJ ACPE Op. 444: Cross "Of Counsel" Listings Between a Firm and a Sole Practitioner
• NJ ACPE Op. 442: Letterhead Stating Various Court Admissions

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp443-1.html
• Issuing authority: New Jersey Supreme Court Advisory Committee on Professional Ethics, via the NJ Courts Supreme Court Committees page

Original opinion text

Reproduced from a full-text mirror of the official opinion for research purposes. The linked official source controls.

104 N.J.L.J. 561, December 27, 1979

OPINION 443

Lawyers Acting "Of Counsel" to More than One Firm

The following inquiry has been presented: Is there any impropriety in an attorney, including one retired from judicial office, serving "Of Counsel" to more than one law firm? The proposed association contemplates the assistance as "Of Counsel" of a retired Superior Court Judge, who is presently "Of Counsel" to a firm in one county, to a firm shortly to be formed in another county. In recent years, it has been a common and accepted practice in this jurisdiction for a retired judge to act "Of Counsel" to a law firm.

Prior to the amendment of DR 2-102 effective April 1, 1979, paragraph (4) stated: The letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members. A lawyer may be designated "Of Counsel" on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate. There is no prohibition in revised DR 2-102 against an attorney acting "Of Counsel." DR 2-102(B) which applies to the situation provides: "A lawyer shall not practice under a name that is misleading as to the identity, responsibility or status of those practicing thereunder, or is otherwise false, fraudulent, misleading, or deceptive within the meaning of DR 2-101(B) or is contrary to law." There is no legal or ethical prohibition against a lawyer being a member of more than one law firm; nor is there any prohibition against a lawyer acting "Of Counsel" to more than one law firm, providing that such association complies with and is conducted in every respect in accordance with all applicable disciplinary rules.