Can an Ohio lawyer sign letters on a client's own letterhead as 'special counsel' or 'of counsel' without being listed at the top of the letterhead?
Ohio BPC Opinion 90-013: Lawyer Signing Correspondence on a Client's Letterhead as 'Special Counsel' or 'Of Counsel'
Short answer: The Board concluded that a lawyer who devotes substantial professional time to a client may sign correspondence on the client's letterhead, with or without being listed on it, so long as the lawyer's professional status is clearly indicated and the criteria of DR 2-102(A)(4) are met.
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.
Plain-English summary
The Board addressed whether a lawyer could sign correspondence on a client's stationery followed by the designation "special counsel" or "of counsel" without being listed at the top of the letterhead, where the lawyer devoted a substantial amount of professional time to the client and the client had recently hired a full-time, in-house general counsel. The Board quoted DR 2-102(A)(4), which permits a lawyer or law firm to be designated "general counsel" or by a similar professional reference on a client's stationery if the lawyer or firm devotes a substantial amount of professional time to representing that client.
The Board concluded that a lawyer is permitted to sign correspondence relating to the client's business using the client's letterhead with or without being listed on it, and that, as a matter of ethics, a lawyer may be identified with a client only if the lawyer's professional status is clearly indicated. It cautioned that a lawyer must scrupulously avoid misleading titles. The Board explained that "of counsel" has traditionally indicated the status of a lawyer who is neither a partner nor an associate of a law firm, so "of counsel" is inappropriate when referring to oneself on a client's letterhead, although it is an appropriate designation on a law firm's letterhead; the lawyer's status on a client's letterhead must clearly indicate the position as counsel for the client.
The Board drew on ABA Informal Opinion 1231 (1972), which permitted designating a lawyer as counsel on a client's letterhead only where the lawyer performs substantial and continuing legal services, provided counsel did not suggest or encourage the listing, the listing was clearly and primarily in the client's interest, and the client did not exploit the listing for business or competitive purposes. The Board concluded that those three criteria apply to a lawyer who wishes to sign correspondence on a client's letterhead, and that a lawyer may ethically do so when the lawyer's professional status is clearly indicated and the lawyer meets the criteria for being listed under DR 2-102(A)(4).
Currency note
The Board flags this opinion as not current in light of subsequent rule amendments to DR 1-102(A)(4) effective December 1, 1995, which expressed the rule in gender-neutral language. It issued in 1990 under Ohio's former Code of Professional Responsibility (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 lawyer be listed as "general counsel" on a client's letterhead?
A: Under this opinion, yes, if the lawyer or firm devotes a substantial amount of professional time to representing that client, as DR 2-102(A)(4) requires.
Q: Can the lawyer sign letters on the client's letterhead without being named at the top?
A: The Board concluded a lawyer may sign correspondence on the client's letterhead with or without being listed on it, so long as the lawyer's professional status is clearly indicated and the DR 2-102(A)(4) criteria are met.
Q: Is "of counsel" a proper title to use on a client's letterhead?
A: The Board concluded "of counsel" is inappropriate on a client's letterhead because it traditionally describes a lawyer's relationship to a law firm; it remains appropriate on a law firm's letterhead.
Background and rules framework
The opinion interprets the former Code of Professional Responsibility DR 2-102(A)(4), which governs designating a lawyer or firm as "general counsel" or by a similar professional reference on a client's stationery where the lawyer devotes substantial professional time to the client.
Citations and references
Rules of Professional Responsibility (Ohio, former):
- DR 2-102(A)(4), designation as "general counsel" or similar reference on a client's stationery
Other opinions cited:
- ABA Committee on Ethics and Professional Responsibility, Informal Op. 1231 (1972): conditions for listing a lawyer as counsel on a client's letterhead
- Board of Commissioners Op. 88-23 (1988): use of "of counsel"
See also
- Ohio BPC Op. 1990-003: Senior Attorney 'Of Counsel' on Letterhead
- Ohio BPC Op. 1989-037: Out-of-State Lawyer's Letterhead and Advice in Ohio
- Ohio BPC Op. 1989-016: Non-Lawyer Not Listed on Letterhead
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-90-013.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 90-13
Issued August 17, 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.]
[Not current-subsequent rule amendments to DR 1-102(A)(4), eff. Dec. 1, 1995, expressing rule in gender neutral language.]
SYLLABUS: Under DR 2-102 (A) (4), a lawyer who devotes a substantial amount of professional time to a client may appear on the client's letterhead and be designated as "general counsel" or similar professional reference. The same lawyer may also sign correspondence using a client's letterhead, with or without being listed on the letterhead provided there is a clear designation of the lawyer's professional status.
OPINION: We have before us your request for an advisory opinion on whether you may sign correspondence on a client's stationery followed by the designation "special counsel" or "of counsel" without being listed at the top of the letterhead. Your letter indicates you devote a substantial amount of professional time to the client and that the client has recently hired a full-time, in-house general counsel.
Disciplinary Rule 2-102 (A) (4) contains the following provision: [a] lawyer or law firm may be designated as 'General Counsel' or by similar professional reference on stationery of a client if he or the firm devotes a substantial amount of professional time in the representation of that client." We believe that a lawyer is permitted to sign correspondence relating to the business of the client using the client's letterhead with or without being listed on the letterhead. As a matter of ethics, a lawyer may be identified with a client only if his or her professional status is clearly indicated. Thus, whether or not he or she is listed on the letterhead, the lawyer may use the client's letterhead only if he or she meets the criteria of DR 2-102 (A) (4).
When indicating professional status a lawyer must scrupulously avoid any misleading titles. Use of the term "of counsel" has traditionally been used by law firms to indicate the status of a lawyer who is neither a partner nor an associate. See, Code of Professional Responsibility, DR 2-102 (A) (4); Board of Commissioners Op. 88-23 (1988). Therefore, "of counsel" is inappropriate when referring to yourself on a client's letterhead but is an appropriate designation on a law firm's letterhead. The lawyer's status, as designated on a client's letterhead, must clearly indicate the lawyer's position as counsel for the client.
The ABA has held that a lawyer could be designated as counsel on a client's letterhead only when the lawyer performs substantial and continuing legal services in the client's behalf and provided that (1) counsel did not suggest or encourage such listing; (2) the listing was clearly and primarily in the interest of the client; and (3) the client did not exploit the listing of his or her counsel for business or competitive purposes. ABA Committee on Ethics and Professional Responsibility Informal Op. 1231 (1972). In our view, these three criteria apply to the lawyer who wishes to sign correspondence on a client's letterhead.
In conclusion it is our opinion and you are so advised that a lawyer may ethically sign correspondence using a client's letterhead when his or her professional status is clearly indicated and when he or she meets the criteria for being listed on the letterhead under DR 2-102 (A) (4).
This is an informal, non-binding advisory opinion based upon the facts presented and limited to questions arising under the Code of Professional Responsibility.