May a New Jersey firm list an out-of-state firm it merely exchanges referrals with on its letterhead as 'Of Counsel'?

Plain-English summary

A New Jersey firm asked whether it could list a Pennsylvania firm on its letterhead as "X, Y & Z, P.A. Of Counsel, Admitted to Practice in Pennsylvania only," and, if the firm name could not be used that way, whether it could instead list the individual members of the Pennsylvania firm as "Of Counsel" with the same admission limitation. The relationship between the two firms was that each referred legal matters to the other; there was no partnership.

The Committee contrasted Opinion 512, 111 N.J.L.J. 381 (1983), in which it had held that a Pennsylvania firm name could be used on a letterhead where there was in fact an interstate partnership relationship. Here, by contrast, the inquiry stated that the firms regularly referred clients to each other but had no partnership. The Committee found the proposal barred by DR 2-102(C), which provides that a lawyer or professional corporation shall not hold itself out as having a partnership with other lawyers unless they are in fact partners, that an interstate partnership's letterhead must make clear the jurisdictional limitations on members not licensed in all listed jurisdictions, and that a firm name may not be used in New Jersey unless all those named are or were members of the New Jersey bar. Because no partnership was being formed or continued, the Committee concluded the firm name could not be used and the rule applied equally to listing the Pennsylvania firm's individual members (citing Opinions 223, 316, and 476).

The Committee added that the proposed letterhead would also violate DR 2-102(A), which bars a letterhead containing a statement or claim that is false, fraudulent, misleading, or deceptive, because the listing would be misleading by indicating a relationship the Pennsylvania firm did not have with the New Jersey firm. It stated it could see no valid reason for attorneys to include on their letterheads referral attorneys or firms in other jurisdictions to whom they refer legal matters.

Currency note

This opinion was issued in 1983, before New Jersey's adoption of the 2004 revisions to the Rules of Professional Conduct, and it was decided under the now-superseded Disciplinary Rules (DR 2-102(C) and DR 2-102(A) are now covered by RPC 7.5 on firm names and letterheads and RPC 7.1 on misleading communications). 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: Could a NJ firm put a referral-partner out-of-state firm on its letterhead as 'Of Counsel'?

A: No. The opinion concluded that, absent an actual partnership, listing the Pennsylvania firm's name held out a partnership that did not exist and was barred.

Q: Could it instead list the individual out-of-state lawyers?

A: No. The opinion held the same rule applied to listing the Pennsylvania firm's individual members, because there was still no partnership and the listing remained misleading.

Q: What if the two firms had actually been partners?

A: The opinion noted that in Opinion 512 it had allowed an out-of-state firm name on a letterhead where there genuinely was an interstate partnership, subject to clear jurisdictional limitations.

Background and rules framework

The opinion applies the firm-name and letterhead rules, then DR 2-102(C) and DR 2-102(A) and now RPC 7.5 (firm names and letterheads) and RPC 7.1 (communications must not be misleading). It draws the line between a genuine interstate partnership, which may share a name subject to disclosure (Opinion 512), and a mere mutual-referral arrangement, which may not be displayed as a firm affiliation.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / NJ RPC 7.5 (firm names and letterheads; formerly DR 2-102(C))
• MR 7.1 / NJ RPC 7.1 (communications concerning a lawyer's services must not be misleading; formerly DR 2-102(A), DR 2-101(B))

Other opinions cited:

• NJ ACPE Opinion 512 (out-of-state firm name allowed on a letterhead where a genuine interstate partnership exists)
• NJ ACPE Opinions 223, 316, and 476 (use of out-of-state firm names and members on letterheads)

See also

• NJ ACPE Op. 533: Firm Name - Multi-Jurisdictional Practice
• NJ ACPE Op. 558: Interstate Partnership Letterhead and NJ-Resident Partners
• NJ ACPE Op. 681: Affiliation With a Foreign Law Firm Based in Part on Referrals
• NJ ACPE Op. 593: Limitations on Firm Names - Employees and In-House Counsel

Source

• Full text (Justia mirror): https://law.justia.com/cases/new-jersey/advisory-committee-on-professional-ethics/2004/acp522-1.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.

112 N.J.L.J. 384, October 6, 1983

OPINION 522

Letterhead - Interstate Referral of Clients

The questions presented are (1) whether a New Jersey firm can have a Pennsylvania firm listed on its letterhead, as "X, Y & Z, P. A. Of Counsel, Admitted to Practice in Pennsylvania only", and (2) if the use of the Pennsylvania firm name is improper, whether it is proper to list the members of the Pennsylvania firm on the letterhead as "Of Counsel" with limitation that they are admitted in Pennsylvania only. The relationship between the firms is that of each firm referring legal matters to the other.

In Opinion 512, 111 N.J.L.J. 381 (1983) we held that a Pennsylvania firm name could be used on a letterhead where there was in fact an interstate partnership relationship.

The present inquiry states, "On a regular basis this firm refers clients to the Philadelphia firm and in reverse many clients are referred to this firm from Philadelphia." There is no partnership relationship.

DR 2-102(C) provides as follows: A lawyer or a professional corporation shall not hold himself or itself out as having a partnership with one or more lawyers or professional corporations unless they are in fact partners. A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumerations of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; provided, however, a firm name may not be used in New Jersey unless all those named are or were members of the bar in New Jersey. (emphasis added)

In our opinion the language of this rule is clear that the firm name cannot be used, and it applies also to the listing of the individual members of the Pennsylvania firm. In fact there is no partnership being formed or continued. See Opinion 223, 94 N.J.L.J. 1197 (1971); Opinion 316, 98 N.J.L.J. 822 (1975); and Opinion 476, 107 N.J.L.J. 321 (1981).

In addition, the proposed letterhead in our opinion would violate DR 2-102(A), which reads as follows: A lawyer or law firm shall not use or participate in the use of a professional card, professional announcement card, office sign, letterhead, telephone directory listing, law list, legal director listing, or a similar professional notice or device if it includes a statement or claim that is false, fraudulent, misleading, or deceptive within the meaning of DR 2-101(B) or that violates the regulations contained in DR 2-101(C).

It would appear that the proposed listings would be misleading by indicating that the Pennsylvania firm has some relationship with the firm, which is not the case. We can see no valid reason for attorneys to include on their letterheads referral attorneys or firms in other jurisdictions to whom they refer legal matters.