Ezel / Ethics Opinions / NYSBA
NYSBA January 14, 2013

Can a New York law firm list a lawyer admitted only in another state as 'of counsel,' and how must the firm show that lawyer's jurisdictional limits on its letterhead and website?

Short answer: Yes. A New York firm may have an of-counsel relationship with a lawyer not admitted in New York and need not state the precise nature of the relationship, but Rule 7.5(d) requires disclosing the jurisdictional limitation, phrased as 'not admitted in New York' or 'admitted only in XX State.'

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This page answers the general question as of 2013. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Currency note: this opinion is from 2013
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 Not binding precedent.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 on this page) is the authoritative source for any reliance.

Plain-English summary

A firm with its main office in New York and a smaller office in another state, managed by a lawyer admitted only in that state, asked whether it may carry that lawyer as "of counsel" and how to disclose his jurisdictional limits on the firm's letterhead and website. The committee anchors the analysis in Rule 7.1, which bars false, deceptive, or misleading communications, and which governs both letterhead (Rule 7.5) and websites.

On the first question, the committee confirms a New York firm may include lawyers not admitted in New York, citing N.Y. State 704 (1998) and N.Y. State 814 (2007), and that partnership is not the only permissible relationship (N.Y. State 864 (2011) recognized affiliation and fee-sharing with an out-of-state lawyer). The "of counsel" designation is permitted under Rule 7.5(a)(4) where there is a "continuing relationship" other than as partner or associate; whether that test is met is fact-specific, and the committee leaves it to the firm to confirm. It also reminds the New York lawyer of the Rule 5.1(a) duty to supervise all firm lawyers and maintain procedures for ethical practice.

On the second question, the firm need not disclose the precise nature of the out-of-state lawyer's relationship. But Rule 7.5(d) prohibits a multi-jurisdiction firm listing unless all enumerations of members and associates make clear the jurisdictional limitations of those not licensed in all listed jurisdictions. The rule does not prescribe exact wording. The committee concludes that either "admitted only in XX" or "not admitted in New York" suffices (citing N.Y. State 434 (1976)), and stresses that limiting terms like "not admitted" or "admitted only" must be used to convey the limitation.

In practice

The opinion holds that, under the New York rules as they stood in 2013, a New York firm may designate an out-of-state lawyer "of counsel" if a continuing relationship exists, without disclosing the relationship's precise nature, but it must mark the lawyer's jurisdictional limitation on letterhead and website per Rule 7.5(d). The committee identifies the controlling principle as Rule 7.1's bar on misleading communications and accepts either "not admitted in New York" or "admitted only in [state]" as adequate phrasing. It also flags the supervising New York lawyer's Rule 5.1(a) duty over all firm lawyers.

Common questions

Q: Can a New York law firm have an out-of-state lawyer as "of counsel"?

A: Yes. Per paragraphs 6 and 7, Rule 7.5(a)(4) allows the designation where there is a continuing relationship, and prior opinions confirm a firm may include lawyers not admitted in New York.

Q: Does the firm have to explain what the of-counsel relationship actually is?

A: No. Paragraph 8 and the conclusion say the firm need not disclose the precise nature of the relationship on its letterhead or website.

Q: How must the firm show that the lawyer is not admitted in New York?

A: With clear limiting language. Per paragraph 9, Rule 7.5(d) is satisfied by "not admitted in New York" or "admitted only in XX State"; terms like "not admitted" or "admitted only" must be used.

Background and rules framework

The opinion interprets Rule 7.1 (Model Rule 7.1, communications about a lawyer's services), Rule 7.5(a)(4) and (d) (Model Rule 7.5, firm names and letterhead; the "of counsel" designation and multi-jurisdiction listings), and Rule 5.1(a) (Model Rule 5.1, supervisory responsibility within a firm).

Citations and references

Rules of Professional Conduct:

  • MR 7.1 / NY Rule 7.1 (no false, deceptive, or misleading communications)
  • MR 7.5 / NY Rule 7.5(a)(4), (d) ("of counsel" designation; multi-jurisdiction listings)
  • MR 5.1 / NY Rule 5.1(a) (supervisory responsibility within a firm)

Other opinions cited:

  • N.Y. State 704 (1998): a firm with New York and non-New York lawyers may practice in New York.
  • N.Y. State 814 (2007): a firm may have multiple offices and out-of-state partners; partnership is not the only permissible relationship.
  • N.Y. State 864 (2011): a New York lawyer may affiliate and share fees with a lawyer not admitted in New York.
  • N.Y. State 434 (1976): acceptable phrasings for jurisdictional limitations on letterhead.

See also

Source

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