When can a lawyer who is not a partner or associate be listed as 'Of Counsel' on a Texas firm's letterhead?

Plain-English summary

The inquiry asked under what circumstances a lawyer who is not an associate or partner may be listed on a firm's letterhead as "Of Counsel." The Committee answered by defining the kind of relationship the designation requires.

The Committee started from DR 2-102(A)(4), which allows a lawyer to be designated "Of Counsel" on a letterhead if he has a continuing relationship with a lawyer or firm other than as a partner or associate, and from the principle that letterhead information must not be misleading because clients have a right to know the identity of the attorneys they are dealing with. The rule, the Committee said, implies a special relationship between the firm and the lawyer it so designates.

Drawing on ABA authority, the Committee noted that ABA Informal Opinion 770 requires a close, regular, personal relationship, that ABA Informal Opinion 1134 approved the designation where the lawyer regularly and actively practiced and actually rendered services to firm clients, and that ABA Formal Opinion 330 found a lawyer cannot truly be "Of Counsel" to more than two firms. The Committee concluded that "Of Counsel" should denote a regular, continuing, and substantial relationship; mere availability for consultation or prior, sporadic association is not sufficient; and a lawyer may not be "Of Counsel" to more than two firms.

Currency note

This opinion was issued in 1981, under the former Texas Code of Professional Responsibility, which the Texas Disciplinary Rules of Professional Conduct replaced effective January 1, 1990. The Disciplinary Rules have since been amended, and Texas never adopted the ABA's Ethics 2000 framework. The closest current provision on firm names, letterhead, and the "Of Counsel" designation is Texas Rule 7.01, with ABA analog Model Rule 7.1. Subsequent rule changes 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Common questions

Q: What relationship does "Of Counsel" require under this opinion?

A: A regular, continuing, and substantial relationship between the firm and the lawyer. The Committee said mere availability for consultation, or a prior and sporadic association, does not satisfy the requirement.

Q: Can a lawyer be "Of Counsel" to several firms at once?

A: No. The Committee concluded, following ABA Formal Opinion 330, that a lawyer may not be "Of Counsel" to more than two firms.

Q: What rule governs the "Of Counsel" designation in this opinion?

A: DR 2-102(A)(4), which permits the designation where the lawyer has a continuing relationship with the firm other than as a partner or associate, read together with the requirement that letterhead not be misleading.

Background and rules framework

The opinion interprets DR 2-102(A)(4) of the former Texas Code of Professional Responsibility, which authorizes the "Of Counsel" designation for a lawyer with a continuing, non-partner, non-associate relationship to a firm, and relies on ABA Informal Opinions 770 and 1134 and ABA Formal Opinion 330. The closest current provision is Texas Rule 7.01, with ABA analog Model Rule 7.1. The analysis turns on the substance of the relationship and on the letterhead not misleading clients.

Citations and references

Rules of Professional Conduct:

• MR 7.1 (communications about a lawyer's services and firm names), as the modern analog
• DR 2-102(A)(4) (former Texas Code of Professional Responsibility)

Other opinions cited:

• ABA Committee on Professional Ethics, Informal Opinion 770: "Of Counsel" requires a close, regular, personal relationship
• ABA Committee on Professional Ethics, Informal Opinion 1134: designation approved where the lawyer actively practices and renders services to firm clients
• ABA Committee on Professional Ethics, Formal Opinion 330: a lawyer cannot be "Of Counsel" to more than two firms

See also

• TX Ethics Op. 445: "Of Counsel" Lawyer Representing a Client Against the Firm's Partners
• TX Ethics Op. 450: Fee-Division Rules and "Of Counsel" Lawyers
• TX Ethics Op. 406: Credentials on a Lawyer's Letterhead and Professional Card

Source

• Landing page: https://www.legalethicstexas.com/resources/opinions/opinion-402/
• Original PDF: https://tcle-web.s3.amazonaws.com/public/documents/Opinion_402.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

QUESTION PRESENTED

Under what circumstances may a lawyer who is not an associate or partner in a firm be listed on that law firm's letterhead as being "Of Counsel?"

DISCUSSION

"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 a partner or associate." DR 2-102(A)(4). A cardinal principle of Legal Ethics is that information on a lawyer's letterhead must not be misleading. This is due to a lawyer's special responsibilities to the legal system and actual and prospective clients' right to know the identity of the attorneys with whom they are dealing. The relevant Disciplinary Rule implies that there must be a special relationship between a law firm and a lawyer it designates as "Of Counsel."

ABA Informal Opinion 770 requires that an attorney designated as "Of Counsel" have a close, regular, personal relationship with the law firm that lists him on its letterhead. This relationship may be by virtue of prior partnership of a retired firm member or a regular and frequent association such that the attorney who is "Of Counsel" has a significant and continuing relationship with the law firm. Similarly ABA Informal Opinion 1134 approved the use of the designation provided the attorney regularly and actively practiced law and that he actually rendered legal services to firm clients. ABA Formal Opinion 330 states that it is not possible for an attorney to truly have "Of Counsel" status with more than two different law firms.

Accordingly, the Professional Ethics Committee is of the opinion that "Of Counsel" should denote a regular, continuing and substantial relationship between a law firm and an attorney. An attorney's mere availability for consultation with firm members, or prior, sporadic association is not sufficient to fulfill this requirement. Further, an attorney may not be "Of Counsel" to more than two firms.

Tex. Comm. On Professional Ethics, Op. 402 (1981)