What does the 'Of Counsel' designation mean, and can a lawyer who is also a CPA indicate the second profession on letterhead or run both practices from one office?
Ohio BPC Opinion 88-023: "Of Counsel" Designation and Dual-Profession Practice
Short answer: The Board concluded that "Of Counsel" indicates a continuing, close relationship with a lawyer or firm other than as a partner or associate, and that under former DR 2-102(E) a lawyer engaged in another profession or business could not indicate that on letterhead, office sign, or card, or identify himself as a lawyer in any publication connected with the other business.
Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the Ohio Board of Professional Conduct'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. The opinion text is reproduced at the bottom; the official source (linked) controls.
Currency note
This opinion was issued in 1988 under the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. The Board itself noted that DR 2-102(E) was arguably inconsistent with the advertising rules and recommended its deletion, and the ABA had already eliminated the parallel provision; the current Ohio Rules no longer contain DR 2-102(E). Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct (including Ohio Prof. Cond. R. 7.5 on firm names and letterhead) before relying on any specific rule mentioned here.
Plain-English summary
A lawyer asked two sets of questions: what the "Of Counsel" designation means (including whether the Of Counsel lawyer is an associate, employee, partner, or independent contractor, and questions about malpractice liability), and whether, as a lawyer who is also a CPA, he could indicate both professions and run both practices from the same office under DR 2-102(E).
On "Of Counsel," the Board explained that under DR 2-102(A)(4) a lawyer may be designated "Of Counsel" on a letterhead if he has a continuing relationship with a lawyer or firm other than as partner or associate. Drawing on ABA Formal Op. 330 (1972), it described the relationship as close, regular, and personal, like that of a retired or semi-retired former partner who remains available for consulting and advice, and not that of an associate, a partner, an employee, or a mere outside consultant; it would be misleading to use "Of Counsel" where the relationship involves only an individual case. The Board expressly declined to answer the malpractice-liability questions, stating those were legal questions outside its authority under Gov. Bar R. V, Section 2(b).
On dual practice, the Board quoted DR 2-102(E): a lawyer engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor identify himself as a lawyer in any publication connected with the other profession or business. Drawing on ABA opinions, it noted there is little ethical difficulty operating an unrelated occupation from the same office so long as the lawyer complies with DR 2-102(E), and that a sufficiently law-related second occupation may make the lawyer subject to the standards of the bar in that work. The Board observed that DR 2-102(E) was adopted when advertising was impermissible, that the ABA had since eliminated its parallel provision, and that it agreed the rule was arguably inconsistent with the amended advertising rules and should be deleted from Ohio's Code, but stated that at that time DR 2-102(E) still applied.
Common questions
Q: What does "Of Counsel" mean?
A: The Board explained that under DR 2-102(A)(4), "Of Counsel" indicates a continuing, close, regular, and personal relationship with a lawyer or firm, other than as partner or associate, like that of a retired or semi-retired former partner remaining available for consultation. It is misleading to use the term where the relationship involves only a single case.
Q: Did the Board decide whether an "Of Counsel" lawyer is liable for the firm's malpractice?
A: No. The Board declined to answer the malpractice and negligence-liability questions, stating they were legal questions outside its authority under Gov. Bar R. V, Section 2(b).
Q: Could a lawyer who is also a CPA show both professions on letterhead?
A: No, at the time. The Board read former DR 2-102(E) to bar a lawyer engaged in another profession from indicating it on letterhead, office sign, or card, or identifying himself as a lawyer in any publication connected with the other business, though it noted it believed the rule was outdated and should be deleted.
Q: Could the lawyer run a law office and a CPA practice from one office?
A: The Board indicated there is little ethical difficulty operating an unrelated occupation from the same location so long as the lawyer complies with DR 2-102(E), and that a sufficiently law-related occupation may subject the lawyer to the standards of the bar in that work.
Background and rules framework
The opinion applies former DR 2-102(A)(4) ("Of Counsel" designation) and DR 2-102(E) (a lawyer engaged in another profession) of the Ohio Code of Professional Responsibility, and addresses the Board's authority limits under Gov. Bar R. V, Section 2(b). The current parallel on firm names and letterhead is Ohio Prof. Cond. R. 7.5 and Model Rule 7.5.
Citations and references
Rules of Professional Conduct:
- Former DR 2-102(A)(4), Ohio Code of Professional Responsibility
- Former DR 2-102(E), Ohio Code of Professional Responsibility
- Gov. Bar R. V, Section 2(b) (Ohio), scope of the Board's advisory authority
Other opinions cited:
- ABA Comm. on Ethics and Professional Responsibility, Formal Op. 330 (1972): nature of the "Of Counsel" relationship
- ABA Comm. on Ethics and Professional Responsibility, Formal Op. 328 (1971): operating a second occupation from a law office
- ABA Comm. on Ethics and Professional Responsibility, Informal Ops. 1316 (1975), 1422 (1978), and 1497 (1983): identifying as a lawyer in another business and the deletion of the parallel provision
See also
- Ohio BPC Opinion 1988-019: Holding Out as a Partnership Without an Actual Partnership
- Ohio BPC Opinion 1988-016: Non-Shareholder Associate's Name in a Legal Professional Corporation
- Ohio BPC Opinion 1988-018: Legal Research Service for Lawyers Under a Trade Name
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/03/Op-88-023.pdf
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-023
Issued August 12, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer designated "Of Counsel" by a another lawyer or law firm indicates a continuing relationship among the lawyers, other than that of partner or associate. Under DR 2-102(E) a lawyer who is engaged in another profession or business, may not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business.
OPINION: We have before us your request for an advisory opinion regarding two distinct issues. The first series of questions you have relate to the use of the "Of Counsel" designation. Your second series of questions relate to DR 2-102(E) and a practicing lawyer engaged in another profession or business.
Your specific questions regarding the "Of Counsel" designation are as follows.
1) What does this "Of Counsel" designation mean?
2) Is the attorney so designated "Of Counsel" considered an associate of the firm?
3) If the firm is found to have committed malpractice, is the attorney designated "Of Counsel" also liable?
4) If the "Of Counsel" attorney is found negligent, is the firm also liable?
5) Would the "Of Counsel" attorney be considered an employee or partner, or merely an independent contractor?
Under DR 2-102(A)(4) of the Code of Professional Responsibility, "(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 partner or associate." The fundamental purpose behind the Code provisions regarding a lawyer's professional status, is that "the particular relationship existing between or among lawyers be stated clearly so that the public will not be misled." ABA Committee on Ethics and Professional Responsibility Formal Op. 330 (1972).
Turning to your first question, the "Of Counsel" designation indicates a continuing or semi-permanent relationship with that lawyer or firm. Id. The "Of Counsel" lawyer's relationship with the lawyer or law firm must be a "close regular, personal relationship like, for example, the relationship of a retired or semiretired former partner, who remains available to the firm for consulting and advice..." Id.
In regard to your second question, an "Of Counsel" lawyer must not be an associate of the firm he or she works for. See, DR 2-102(A)(4). Your third and fourth questions are legal questions which we do not have the authority to answer. Gov. Bar R. V Sec. 2(b).
Pursuant to your fifth question an "Of Counsel" lawyer is a "member or component part of that law office, but his status is not that of a partner or an employee (nor that of controlling member of a professional legal corporation)." ABA Committee on Ethics and Professional Responsibility, Formal Op. 330 (1972). The "Of Counsel" lawyer is compensated as a sui generis member of a law office and should not be considered an outside consultant of the law office. Id. Moreover, it would be misleading to use "Of Counsel" where the relationship only involves an individual case. Id.
Your second set of questions begin with a legal question, regarding the constitutionality of DR 2-102(E). Again, we do not address legal questions. Gov. Bar R. V Sec. 2(b). The Ohio Supreme Court has exclusive authority over modifying the Code of Professional Responsibility. See, Ohio Const. art. IV, Sec. 5(B). Therefore, we suggest that you contact the Court regarding any proposed changes in the Code.
Your questions regarding dual practice relate to you being both a lawyer and a C.P.A. Specifically you ask whether you can operate both practices out of the same office, use the same phone number, same secretary, same office sign, same files, and bill for both services together.
Disciplinary Rule 2-101(E) specifically states that, "[a] lawyer who is engaged both in the practice of law and another profession or business shall not so indicate on his letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection with his other profession or business. According to this rule therefore, any advertisement (including a letterhead) by a lawyer for a non-legal service wherein he is identified as a lawyer would be improper and in violation of DR 2-102(E)." ABA Committee on Ethics and Professional Responsibility, Informal. Op. 1316 (1975).
However, "[t]here is little ethical difficulty with the operation of an unrelated occupation from the same location as a lawyer's law office so long as the lawyer complies with DR 2-102(E)." ABA Committee on Ethics and Professional Responsibility, Formal Op. 328 (1971). The ABA also held in Opinion 328 that,
[i]f the second occupation is so law-related that the work of the lawyer in such occupation will involve, inseparably, the practice of law, the lawyer is considered to be engaged in the practice of law while conducting that occupation. Accordingly, he is held to the standards of the bar while conducting that occupation from his law office. With this qualification, the lawyer may carry on a law-related occupation, such as that of a C.P.A., from the same office. Id.
Disciplinary Rule 2-102(E) was adopted at a time when other Disciplinary Rules and the predominant sentiment within the legal profession made it impermissible for lawyers to advertise. ABA Committee on Ethics and Professional Responsibility Informal Op. 1422 (1978). Now that the restrictions on lawyers advertising have been substantially reduced, we agree with the ABA when they state that DR 2-102(E) is "plainly inconsistent with the tenor of DR 2-101 as amended." Id. Under DR 2-101 a lawyer is now permitted to engage in many forms of advertising provided the advertising does not contain a false, fraudulent, misleading, or deceptive statement or claim. But for DR 2-102(E), a lawyer's advertising could ethically include that he or she is engaged in another profession or business if that is in fact the case.
As a result of this apparent inconsistency, in February of 1980, the ABA eliminated DR 2-102(E) from it's Model Code of Professional Responsibility. ABA Committee on Ethics and Professional Responsibility Informal Op. 1497 (1983). In that opinion, the ABA held that a lawyer/physician may practice law and medicine from the same office and that the deletion of DR 2-102(E) from the Code was intended to permit a dual listing. Id.
Therefore, it is our position that DR 2-102(E) is arguably inconsistent with the other Disciplinary Rules relating to advertising and should be deleted from Ohio's Code of Professional Responsibility.
At this time however, under DR 2-102(E) a lawyer is not permitted to indicate on his letterhead, office sign or professional card that he is engaged in another profession or business. Furthermore, a lawyer shall not identify himself as a lawyer in any publication in connection with his other profession or business.
This is an informal, non-binding advisory opinion based upon the facts as presented and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of Commissioners