Ezel / Ethics Opinions / NYSBA
NYSBA 2012-09-21

Can a firm list a departing former name partner as 'Special Counsel' on its letterhead, and what does that title do to conflicts?

Short answer: Only if the departing lawyer is actually available to the firm for consultation on a regular and continuing basis. If the title fits, the lawyer is 'associated' with the firm and his conflicts are imputed to it under Rule 1.10(a).
Currency note: this opinion is from 2012
Subsequent statutory amendments, court decisions, or later opinions or rule amendments may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked at the bottom of this page) is the authoritative source for any reliance.

NY State Bar Ethics Opinion 936: Designating a departing partner as "Special Counsel"

Short answer: A firm may list a departing former name partner as "Special Counsel" on its letterhead only if his continuing work makes him available to the firm for consultation and advice on a regular and continuing basis; if it does, he is "associated" with the firm and his conflicts are imputed to it.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the New York State Bar Association's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. We do not reproduce the opinion text on this page; follow the linked source for the official text, which controls.

View original opinion

Plain-English summary

A founding name member of the firm left to become in-house counsel at a regional hospital. The firm removed his name from its firm name but wants to keep him on the letterhead as "Special Counsel" with an explanatory footnote. He would do substantive work through the firm only for certain former clients who request him, consult directly and bill through the firm (the firm keeping 10%), and would have no general file access, no office, and no role in management. The firm proposes "Special Counsel" rather than "Of Counsel," arguing the latter implies broader file access, general availability, and day-to-day involvement.

The committee notes the rules address "Of Counsel" (Rule 7.5(a)(4) permits the designation where there is a "continuing relationship" other than as partner or associate) but not "Special Counsel." Prior authority reads "continuing relationship" to require a "close, regular, personal relationship," meaning the lawyer is available for consultation and advice on a regular and continuing basis (N.Y. State 853, 793; N.Y. City 1995-8). The committee treats "Special Counsel," "counsel," and "of counsel" as essentially synonymous for ethics purposes (citing ABA 90-357 and Simon's treatise), and stresses that any such designation must not be misleading, subject to Rule 7.1(a)(1) when used in advertising and to more general anti-deception rules (Rules 4.1, 8.4(c)) even outside advertising.

The committee rejects the firm's three-factor test and holds the essential question is whether the lawyer is available to the firm for consultation and advice on a regular and continuing basis, a matter of degree turning on how many clients use him and to what extent. If he represents a number of former clients in multiple matters on an ongoing basis, "Special Counsel" (or "Of Counsel") is justified; if only a few clients in a small number of matters or very limited ways, the designation could be impermissibly misleading (N.Y. State 853; N.Y. State 262). The conclusion does not depend on the compensation split or on a footnote: an accurate footnote may be added if the lawyer meets "counsel" standards, but a footnote cannot rescue a designation that does not. The committee then discusses imputation: a lawyer held out as "counsel" (whatever the actual involvement) is "associated" with the firm, so his Rule 1.7, 1.8, and 1.9 conflicts are imputed under Rule 1.10(a); because the corporate legal department is itself a firm (Rule 1.0(h)), the firm and the hospital's legal department share conflicts and must cross-check under Rule 1.10(e). It notes courts may decline to disqualify an entire firm on such imputation (Hempstead Video), but that does not change the ethics imputation requirement.

In practice

The opinion holds that, under the New York rules as they stood in 2012, "Special Counsel" is permissible only if the departing lawyer's actual practice includes regular and continuing consultation and advice for the firm and its clients. The committee identifies the controlling factor as that level of involvement (not the compensation arrangement or an explanatory footnote), and warns that the title carries a consequence: if it fits, the lawyer is "associated" with the firm, so his conflicts impute under Rule 1.10(a) and both the firm and the hospital legal department must run cross conflict checks under Rule 1.10(e).

Common questions

Q: Is "Special Counsel" different from "Of Counsel" for ethics purposes?

A: Not meaningfully. Per paragraph 8, the committee treats the variants as essentially synonymous; both require the same close, regular, continuing relationship.

Q: When is the "Special Counsel" label misleading?

A: When the relationship is too thin. Per paragraph 13, if the lawyer handles only a few former clients in a small number of matters or in very limited ways, the designation could be impermissibly misleading.

Q: Does naming a lawyer "Special Counsel" affect conflicts?

A: Yes. Per paragraphs 16 and 20, a lawyer held out as "counsel" is "associated" with the firm, so his Rule 1.7, 1.8, and 1.9 conflicts are imputed under Rule 1.10(a), and the firm and his employer must cross-check under Rule 1.10(e).

Background and rules framework

The opinion interprets New York Rule 7.5(a) (Model Rule 7.5, letterhead and the "Of Counsel" designation), Rule 7.1(a)(1) (Model Rule 7.1, false or misleading communications), and Rule 1.10(a) and (e) (Model Rule 1.10, imputation of conflicts and conflict-checking systems), with reference to Rule 1.0(h) (a corporate legal department is a "firm"). It reads "Special Counsel" as a variant of "of counsel" governed by the same standard.

Citations and references

Rules of Professional Conduct:

  • MR 7.5 / NY Rule 7.5(a)(4) ("Of Counsel" designation on letterhead)
  • MR 7.1 / NY Rule 7.1(a)(1) (false or misleading communications)
  • MR 1.10 / NY Rule 1.10(a), (e) (imputation; conflict-checking systems); Rule 1.0(h) (definition of "firm")

Cases:

  • Hempstead Video, Inc. v. Incorporated Village of Valley Stream, 409 F.3d 127 (2d Cir. 2005), rejecting a per se imputation rule for disqualification of a firm based on an of-counsel lawyer's conflict.

Other opinions cited:

  • N.Y. State 853 (2011), 793 (2006), 262 (1972); N.Y. City 1995-8; ABA Formal Op. 90-357: standards for "of counsel" and imputation.

See also

Source