Can a law firm call a retired attorney who merged in and became a salaried employee 'Senior Attorney' on the letterhead, and when is 'Of Counsel' proper?

Plain-English summary

The Board addressed whether a law firm that merges with a retiring attorney, who then becomes a salaried employee, may designate that lawyer as "Senior Attorney" on the firm's letterhead. The requester had concluded that "Of Counsel" would be inappropriate.

The Board began with DR 2-101(A), under which any communication about a lawyer's professional status must not contain a misleading claim. It explained that "Of Counsel" is not appropriate for an associate or salaried employee. Citing ABA Formal Opinion 330 (1972), it stated that the "Of Counsel" designation under DR 2-102(A)(4) is permitted only where the relationship between the lawyer and the firm is a close, regular, personal, and continuing one, such as a retired or semiretired former partner who remains available to the firm for consultation and advice, and that the "Of Counsel" lawyer is neither a partner nor an ordinary employee.

Turning to "Senior Attorney," the Board reasoned that the central meaning of "senior" is "the elder" (Black's Law Dictionary), and that adding "Senior" to "Attorney" is not misleading when used to designate the number of years the attorney has practiced and does not imply rank or importance. It concluded that an older attorney who merged into the firm may be designated "Senior Attorney" without violating the Code, while suggesting that the senior attorney be separated on the letterhead from the associates and partners to avoid misleading the public.

Currency note

This opinion issued in 1990 under Ohio's former Code of Professional Responsibility, which the bar notes is superseded by the Ohio Rules of Professional Conduct effective February 1, 2007. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Can a salaried employee or associate be listed as "Of Counsel"?

A: Under this opinion, no. The Board concluded that "Of Counsel" is not appropriate for an associate or salaried employee and requires a close, continuing, non-partner relationship.

Q: Can a retiring attorney who merged into the firm be called "Senior Attorney"?

A: Yes. The Board concluded that "Senior Attorney" is not misleading when used to reflect the lawyer's years of practice and does not imply rank.

Q: What makes an "Of Counsel" relationship proper?

A: Citing ABA Formal Op. 330, the Board described it as a close, regular, personal, continuing relationship, such as a retired or semiretired former partner available for consultation, who is neither a partner nor an ordinary employee.

Background and rules framework

The opinion interprets the former Code of Professional Responsibility: DR 2-101(A) (communications about professional status must not be misleading), DR 2-102(A)(4) (identifying a lawyer on letterhead, including "Of Counsel"), and DR 2-105 (limitation of practice).

Citations and references

Rules of Professional Responsibility (Ohio, former):

• DR 2-101(A), no misleading claim about professional status
• DR 2-102(A)(4), identification on letterhead and "Of Counsel"
• DR 2-105, limitation of practice

Other opinions cited:

• ABA Committee on Ethics and Professional Responsibility, Formal Op. 330 (1972): the "Of Counsel" relationship as a close, continuing, non-partner relationship

See also

• Ohio BPC Op. 1988-023: "Of Counsel" and Dual-Profession Letterhead
• Ohio BPC Op. 1989-036: Office Sharing and Common Letterhead Disclaimers
• Ohio BPC Op. 1988-019: Firm Name Implying a Partnership Not in Fact
• Ohio BPC Op. 1989-037: Out-of-State Lawyer on Letterhead and Advising Before Admission

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-003.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 90-3
Issued April 20, 1990

[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: An associate or partner in a law firm shall not be designated as "Of Counsel" on the firm's letterhead. An older attorney who has merged his office with another law firm, has a continuing relationship and has practiced law for several years may be designated as "Senior Attorney" on a firm's letterhead.

OPINION: We have before us your request for an advisory opinion on the following question: When a law firm merges with a retiring attorney, who will then become a salaried employee, may the law firm designate that lawyer as "Senior Attorney" on the firm's letterhead? You indicate that your own research suggests "of counsel" would be inappropriate.

"Senior Attorney" is not defined in the Code of Professional Responsibility. Any communication by a lawyer regarding his or her professional status shall not contain any misleading claim. Code of Professional Responsibility DR 2-101(A).

An "Of Counsel" designation is not appropriate for an "associate," salaried employee. Disciplinary Rule 2-102 (A) (4) allows a lawyer to be identified on a law firm's letterhead as a lawyer with any information permitted under DR 2-105 (limitation of practice). The designation of a lawyer as "Of Counsel", is permitted by DR 2-102 (A) (4) as long as the relationship between the lawyer and the law firm is a continuing one. The lawyer may not be a partner. The relationship must be a "close, regular, personal relationship, for example, the relationship of a retired or semiretired former partner, who remains available to the firm for consulting and advice." ABA Committee on Ethics and Professional Responsibility Formal Op. 330 (1972).

The "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. …The "Of Counsel" lawyer is compensated as a sui generis member of a law office. Id. The Code of Professional Responsibility lacks specific definitions of lawyer and law firm relationships other than the "Of Counsel" designation.

The central meaning of "senior" is "the elder." Black's Law Dictionary 1222 (5th ed. 1979). Adding "Senior" to the word "Attorney" is not misleading when used to designate the number of years the particular attorney has practiced law, and does not infer importance in rank or estimation. Therefore, the "Senior Attorney" designation on a law firm's letterhead would not violate the Code of Professional Responsibility in our opinion. However, we suggest separating the senior attorney on the letterhead from the other associates and partners on the letterhead to avoid misleading the public.

Based on the foregoing, it is our opinion and you are so advised that an older attorney who has merged with your law firm may be designated as "Senior Attorney" on your firm's letterhead. Such a status line is not misleading under the circumstances stated.

This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.