A named partner is leaving my firm to work at a corporation but will stay 'of counsel.' Can we keep the partner's name in the firm name under Rule 7.5?

Plain-English summary

The inquiring attorney sought guidance on the continued use of a firm name. The attorney's law partner was leaving the firm to be employed at a corporation and planned to become "of counsel" to the firm, while the firm wished to retain its present name, of which the departing partner's name was a part.

The Panel set out Rule 7.5(a) ("Firm Names and Letterheads"), which bars using a firm name, letterhead, or professional designation that violates Rule 7.1. It quoted ABA Formal Opinion 90-357 defining "of counsel" as a close, regular, personal relationship that is neither a partner's nor an associate's, and identifying four types of "of counsel" relationships: the part-time practitioner, the retired partner who remains associated, the probationary partner-to-be, and a permanent status between partner and associate having the quality of tenure. The Panel explained that if a named partner is retiring to become "of counsel," the lawyer's name may be retained in the firm name, but that this is not true where, instead of retiring, the lawyer is withdrawing to practice elsewhere, take other employment, or take a leave of absence. It cited Philadelphia Ethics Opinion 88-31, which states that such a lawyer may not continue to include his name in the firm name because it connotes partnership, though the firm may list its former name in parentheses under its new name, and Michigan Informal Opinion CI-1001-84.

The Panel opined that the departing "of counsel" attorney may not continue to have his or her name as part of the law firm's name, because such inclusion connotes a partnership and is therefore misleading to the public, and because the proposed relationship does not satisfy any of the four general types of "of counsel" relationships.

Currency note

This opinion was issued in 1994 (Opinion 94-65, issued December 6, 1994), after the Rhode Island Supreme Court adopted the Model Rules of Professional Conduct effective November 15, 1988, and it applies Rules 7.5 and 7.1 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, which amended the firm-name and advertising rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance.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 a firm keep a departing partner's name if the partner stays 'of counsel'?

A: On these facts the Panel concluded no. Because the partner was leaving for other employment rather than retiring, keeping the name connotes partnership and is misleading under Rule 7.5.

Q: When may a departing partner's name stay in the firm name?

A: The Panel explained that a named partner retiring to become "of counsel" may keep the name in the firm name, but not one withdrawing to practice elsewhere, take other employment, or take a leave of absence.

Q: Can the firm reference its former name at all?

A: The Panel cited Philadelphia Opinion 88-31 for the point that the firm may list its former name in parentheses under its new name.

Background and rules framework

The opinion interprets Rhode Island Rules of Professional Conduct 7.5 (firm names and letterheads) and 7.1 (communications concerning a lawyer's services), the analogs of Model Rules 7.5 and 7.1. Rule 7.5(a) forbids firm names that violate Rule 7.1's ban on misleading communications. The Panel treated retaining a departed partner's name, absent retirement, as implying a partnership that no longer exists.

Citations and references

Rules of Professional Conduct:

• MR 7.5 / RI RPC 7.5(a) (firm names and letterheads)
• MR 7.1 / RI RPC 7.1 (communications concerning a lawyer's services)

Other opinions cited:

• ABA Formal Opinion 90-357 (1990): definition and four types of "of counsel" relationships
• Vermont Ethics Opinion 83-7; Virginia Ethics Opinion 660 (1985): retained name for a retired named partner
• Philadelphia Ethics Opinion 88-31 (Nov. 1988): departing partner's name may not remain; former name may appear in parentheses
• Michigan Informal Opinion CI-1001-84: firm may not retain the name of a departed partner absent a close continuing relationship

See also

• RI EAP Opinion 94-56: a sign where the lawyer does not practice is misleading under Rule 7.1
• RI EAP Opinion 94-41: members entitled to file for the firm's clients

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%2094-65.pdf

Original opinion text

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

ETHICS ADVISORY PANEL
OPINION #94-65 REQUEST #536
Issued December 6, 1994

The inquiring attorney seeks guidance regarding the continued use of a firm name. The inquiring attorney's law partner is leaving the law firm and will be employed at a corporation. The departing partner plans to become "of counsel" to the law firm. The law firm would like to retain its present name of which the departing partner's name is a part thereof.

Rule 7.5 entitled "Firm Names and Letterheads" provides that:

(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

"Of counsel" has been defined as "a close, regular, personal relationship; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term 'associate'; which is to say a junior non-partner lawyer . . ." ABA Formal Opinion 90-357 (1990).

The title "of counsel" generally applies to four types of relationships: "the part-time practitioner, the retired partner who remains associated with the firm, the probationary partner-to-be and the permanent status in between those of partner and associate but having the quality of tenure." ABA Formal Opinion 90-357.

The rule regarding the use of the "of counsel" lawyer's name in the law firm's title is that if the lawyer is a named partner of the firm and is retiring to become "of counsel," the lawyer's name may be retained in the firm name. See, ABA Formal Opinion 90-357 (1990); Vermont Ethics Opinion 83-7; Virginia Ethics Opinion 660 (1985). This is not true if instead of retiring, the lawyer is withdrawing to practice in another place, to take other employment or is taking a leave of absence. "A lawyer who withdraws as a partner from a law firm but remains 'of counsel' to the firm may not continue to include his name in the firm name because such inclusion connotes partnership. The firm may however, list its former name in parentheses under its new name." Philadelphia Ethics Opinion 88-31 (Nov. 1988). See also, Michigan Informal Opinion CI-1001-84 which opined that a law firm may not retain the name of a partner who has left the firm and accepted employment elsewhere, nor may the lawyer be listed on the firm's letterhead as "of counsel" if there is no close continuing relationship between the lawyer and the firm.

The Panel opines that the departing "of counsel" attorney may not continue to have his/her name a part of the law firm's name because such inclusion connotes a partnership and is therefore misleading to the public and the inquiring attorney's proposed relationship with the law firm does not satisfy any of the four general types of relationships quoted above.