Can a lawyer on inactive status remain 'of counsel' to a law firm?

Plain-English summary

The inquiry asked whether a lawyer in inactive status may maintain an "of counsel" relationship with a law firm. The committee concluded the answer is no. Identifying a lawyer as "of counsel" to a firm implies a continuing professional relationship between the lawyer and the firm, necessarily involving some practice of law by the lawyer, and an inactive lawyer cannot engage in the practice of law. Therefore, identifying an inactive member as "of counsel" would be false and misleading, in violation of RPC 7.1 and possibly RPC 8.4.

The committee added that the firm could include the lawyer's name in the firm name under RPC 7.5(a), should it choose to do so. It disclaimed any opinion as to the propriety, or lack thereof, of the inquirer's prior arrangement with the firm, and cited ABA Formal Opinion 90-357.

Currency note

This opinion was issued in 1999, before the Washington State Bar Association's adoption of the 2006 revisions to the Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here. Washington's RPC 7.5 (firm names and letterheads) has since been folded into RPC 7.1 in line with later ABA revisions, so verify the current numbering before relying on it.

Common questions

Q: Can an inactive lawyer stay "of counsel" to a firm?

A: No. The committee concluded the "of counsel" designation implies a continuing professional relationship involving some practice of law, which an inactive lawyer cannot do, so it would be false and misleading under RPC 7.1 and possibly RPC 8.4.

Q: Why does "of counsel" cause the problem?

A: Because it implies a continuing professional relationship necessarily involving some practice of law by the lawyer, and an inactive lawyer cannot engage in the practice of law.

Q: Can the firm keep the inactive lawyer's name in the firm name?

A: The committee said the firm could include the lawyer's name in the firm name under RPC 7.5(a), should it choose to do so.

Background and rules framework

The opinion applied Washington RPC 7.1 (communications concerning a lawyer's services), RPC 7.5(a) (firm names and letterheads), and RPC 8.4 (misconduct), corresponding to ABA Model Rules 7.1, 7.5, and 8.4, and cited ABA Formal Opinion 90-357 on the "of counsel" designation. The committee distinguished the misleading "of counsel" label from the permissible inclusion of the lawyer's name in the firm name under RPC 7.5(a).

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 7.1 (communications concerning a lawyer's services); Washington RPC 7.1
• ABA Model Rule 7.5 (firm names and letterheads); Washington RPC 7.5(a)
• ABA Model Rule 8.4 (misconduct); Washington RPC 8.4

Other opinions cited:

• ABA Formal Opinion 90-357 (use of the "of counsel" designation)

See also

• ABA Formal Op. 90-357: The 'Of Counsel' Designation
• WA Ethics Op. 1005: Non-Partner in the Firm Name
• WSBA Ethics Op. 1076: Firm Names and Letterhead

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1061

Original opinion text

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

Advisory Opinion: 1868
Year Issued: 1999
RPC(s): RPC 7.1; 7.5(a); 8.4; ABA Formal Opinion 90-357
Subject: Letterhead; firm name or designation; law firm listing inactive lawyer as "of counsel"

I have been instructed by the Rules of Professional Conduct Committee to respond to your ethics inquiry #1868 concerning remaining "of counsel" while on inactive status.

The Committee has reviewed your inquiry and determined the following:

Your inquiry concerns whether a lawyer in inactive status may maintain an "of counsel" relationship with a law firm.

No. Identifying a lawyer as "of counsel" to a firm implies a continuing professional relationship between the lawyer and the firm, necessarily involving some practice of law by the lawyer. An inactive lawyer cannot engage in the practice of law. Therefore, identifying an inactive member as "of counsel" would be false and misleading, in violation of RPC 7.1 and possibly RPC 8.4. However, the firm could include the lawyer’s name in the firm name under RPC 7.5(a), should it choose to do so. The committee disclaims any opinion as to the propriety, or lack thereof, of your prior arrangement with the firm. See ABA Formal Opinion 90-357.