An out-of-state firm with no Rhode Island-licensed lawyers wants to open a Rhode Island office under its own name, listing me on the stationery as 'Of Counsel' with jurisdictional limitations noted. Is this proper?

Plain-English summary

The inquiring attorney, a member of the Rhode Island bar, described an arrangement with "Smith and Jones," a partnership of attorneys practicing outside Rhode Island that wished to serve clients within the state; no partners or associates of Smith and Jones were members of the Rhode Island bar. Smith and Jones wanted to continue using its firm name in Rhode Island, listing the inquiring attorney's name on the stationery as "Of Counsel," with each firm member's jurisdictional limitations noted on the stationery. The attorney asked whether this arrangement was proper.

The panel explained that the term "Of Counsel," formerly defined in the disciplinary rules as DR 2-102(A)(4), is not defined in the Rules of Professional Conduct, but that the earlier rule provided that the designation indicated the lawyer had "a continuing relationship with a lawyer or law firm other than as partner or associate." On that basis, the panel held it would not be proper for the attorney to staff a Rhode Island office of Smith and Jones if his relationship is, in fact, less than that of partner or associate. The panel quoted Rule 7.5(b), which permits a law firm with offices in more than one jurisdiction to use the same name in each jurisdiction, provided the identification of lawyers in an office indicates the jurisdictional limitations of those not licensed where the office is located. The panel concluded that if the attorney's affiliation with Smith and Jones were that of an associate or partner rather than "Of Counsel," all other ethical requirements would be met and the arrangement described would be proper.

Currency note

This opinion was issued in May 1990, after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rule 7.5(b) as originally adopted. The Rhode Island Supreme Court later revised the Rules of Professional Conduct in 2007 as part of the nationwide Ethics 2000 process. Subsequent rule amendments or later opinions may have changed the analysis, including the definition and permissible use of "Of Counsel." Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule mentioned here.

Common questions

Q: Can I be listed as "Of Counsel" to an out-of-state firm's Rhode Island office if I'm the only Rhode Island-licensed lawyer there?

A: Not under this opinion. The panel held it would not be proper for the attorney to staff the Rhode Island office if his relationship to the firm is, in fact, less than that of partner or associate, which the "Of Counsel" designation, by its traditional definition, is.

Q: What would make the same office arrangement proper?

A: The panel stated that if the attorney's affiliation with the out-of-state firm were that of an associate or partner rather than "Of Counsel," all other ethical requirements would be met and the arrangement would be proper.

Q: What does Rule 7.5(b) require of a multi-jurisdictional firm using the same name in each office?

A: Per the opinion, Rule 7.5(b) permits a law firm with offices in more than one jurisdiction to use the same name in each, but the identification of lawyers in an office must indicate the jurisdictional limitations of those not licensed where that office is located.

Background and rules framework

The opinion applies Rule 7.5(b) of the Rhode Island Rules of Professional Conduct, as adopted effective November 15, 1988, governing multi-jurisdictional firm names and jurisdictional-limitation disclosures, together with the traditional definition of "Of Counsel" as a relationship other than partner or associate, to an inquiry about an out-of-state firm staffing a Rhode Island office.

Citations and references

Rules of Professional Conduct:

• MR 7.5 (firm names and letterheads)
• RI RPC 7.5(b), as adopted November 15, 1988
• Former DR 2-102(A)(4), cited for the traditional definition of "Of Counsel"

Statutes:

• None cited.

Cases:

• None cited.

Other opinions cited:

• None cited.

See also

• ABA Formal Op. 90-357: Use of Designation "Of Counsel"
• AK Bar Op. 2010-1: Ability of Lawyer Not Admitted in Alaska to Maintain Alaska Office for Federal Immigration Practice

Source

• Landing page: https://www.courts.ri.gov/attorney-resources/Pages/Ethics-Advisory-Panel-default.aspx
• Original PDF: https://www.courts.ri.gov/Opinions/EAP%2090-20.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain; the linked PDF is authoritative.

DIGEST OF ETHICS ADVISORY PANEL
OPINION #90-20, REQUEST #99
Issued May 31, 1990

An attorney seeks Panel advice as to whether he may properly enter a professional relationship under the circumstances he describes.

The attorney advises the Panel that he is a member of the Rhode Island bar. Smith and Jones, a partnership of attorneys practicing outside the state of Rhode Island would like to serve clients within Rhode Island. No partners or associates of Smith and Jones are members of the Rhode Island bar. Smith and Jones would like to continue using its firm name in Rhode Island; the attorney's name would be listed on the stationery as "Of Counsel." The jurisdictional limitations of each member of the firm would be noted on the stationery. The attorney asks whether this arrangement is proper under the Rules of Professional Conduct.

The term "Of Counsel," formerly defined in DR 2-102(A)(4), is not defined in the Rules of Professional Conduct. DR 2-101(A)(4) provided that the designation "Of Counsel" indicated that the lawyer had "a continuing relationship with a lawyer or law firm other than as partner or associate." The Panel takes the position that it would not be proper for the attorney to staff a Rhode Island Office of Smith and Jones if his relationship is, in fact, less than that of partner or associate.

Rule 7.5(b) provides:

A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.

For purposes of answering the questions the attorney has raised, if the attorney's affiliation with Smith and Jones were that of an associate or partner rather than "Of Counsel" then all other ethical requirements would be met and the arrangement described would be proper.

Ethics Advisory Panel advice is protective in nature. There is no requirement that an attorney abide by a Panel opinion, but if he or she does, he or she is fully protected from any charge of impropriety.