Can a retired founding member who is an honorary bar member be listed as 'Honorary Member' on a law firm's letterhead?

Plain-English summary

The inquiry asked how to acknowledge a founding member of a firm on its letterhead when he is no longer in the active practice of law and does not meet the criteria for "Of Counsel." The founding member, the father of a present firm member, reached honorary status with the Washington State Bar through 50 years of membership, is 80 years old, is described as no longer in active practice, but is occasionally called on to lend his thoughts on client matters. The firm had been designating him as "Honorary Member" on its letterhead. The opinion assumed he is retired.

The committee concluded that the designation "Honorary Member," without further clarification, violates RPC 7.1 and 7.5. It reasoned that the label implies the honorary-member lawyer and the other lawyers are in a partnership when they are not (RPC 7.5(d) permits stating or implying a partnership only when that is the fact), and that without a statement of his retired status it implies he is still practicing law. RPC 7.5(a) bars a firm name, letterhead, or professional designation that violates Rule 7.1, and RPC 7.1 prohibits a false or misleading communication, including one that contains a material misrepresentation or omits a fact needed to keep the statement from being materially misleading.

The committee pointed to its prior informal opinions: Informal Opinion 1868 (an inactive lawyer may not use the "Of Counsel" designation) and Informal Opinion 1994 (designating an attorney as "Retired" when he is practicing law would violate RPC 7.1 and 7.5). It concluded that because the founding member is no longer in active practice, the letterhead must make that clear, and that "Retired" followed by the year of retirement, placed after his name, would acknowledge his contribution while eliminating any potential to mislead. The committee limited the opinion to the letterhead-designation question and directed the firm's attention to RPC 5.5(e) (whether lending thoughts on client matters is the practice of law) and to Formal Opinion 178 (the "Of Counsel" designation).

In practice

Under this opinion, and under the advertising rules as they stood in 2006, the controlling concern is whether the letterhead label accurately conveys the lawyer's relationship to the firm and his practice status. The opinion holds that "Honorary Member" standing alone is misleading under RPC 7.1 and 7.5 because it implies both a partnership that does not exist and continued active practice; it identifies "Retired," followed by the year of retirement and placed after the lawyer's name, as a designation that, per Informal Opinion 1994, is acceptable. The opinion expressly does not decide whether the founding member's occasional input is itself the practice of law, pointing instead to RPC 5.5(e) and Formal Opinion 178. Washington restructured RPC 7.1 through 7.5 in a comprehensive 2006 revision, so current rule numbering should be checked.

Common questions

Q: Can a law firm list a retired founder as 'Honorary Member' on its letterhead?

A: Not without more. The committee concluded that "Honorary Member" alone violates RPC 7.1 and 7.5 because it implies the lawyer is a partner still in active practice.

Q: What designation did the committee say would work?

A: "Retired," followed by the year of retirement and placed after the lawyer's name. The committee said that, per Informal Opinion 1994, this acknowledges the lawyer while eliminating the potential to mislead.

Q: Why is implying a partnership a problem?

A: RPC 7.5(d) permits stating or implying a partnership only when it is the fact. The committee found the honorary-member label implied a partnership that did not exist.

Q: Did the opinion decide whether the retired lawyer's occasional input is practicing law?

A: No. The committee limited the opinion to the letterhead question and directed the firm to RPC 5.5(e) and Formal Opinion 178 on those points.

Background and rules framework

The opinion interprets Washington RPC 7.5 (firm names and letterheads; the counterpart to Model Rule 7.5) and RPC 7.1 (false or misleading communications; the counterpart to Model Rule 7.1). RPC 7.5(a) prohibits a firm name, letterhead, or professional designation that violates Rule 7.1 or Rule 7.4, and RPC 7.5(d) permits stating or implying a partnership only when that is the fact. The committee also referenced RPC 5.5(e) on what constitutes the practice of law, its Informal Opinions 1868 and 1994, and Formal Opinion 178 on the "Of Counsel" designation.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 / Washington RPC 7.5, 7.5(a), 7.5(d) (firm names, letterheads, and professional designations)
• Model Rule 7.1 / Washington RPC 7.1 (false or misleading communications about a lawyer's services)
• Model Rule 5.5 / Washington RPC 5.5(e) (referenced on whether the conduct is the practice of law)

Other opinions cited:

• WSBA Informal Opinion 1868 (inactive lawyer may not use "Of Counsel")
• WSBA Informal Opinion 1994 (designating a practicing attorney as "Retired" violates RPC 7.1 and 7.5; permits "Retired" plus year of retirement)
• WSBA Formal Opinion 178 (the "Of Counsel" designation)

See also

• WSBA Ethics Op. 1183: Non-Partner's Name in Firm Name
• WSBA Ethics Op. 1224: Associate on Firm Letterhead
• ABA Formal Op. 90-357: Use of 'Of Counsel' Designation

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=1551

Original opinion text

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

Advisory Opinion: 2113
Year Issued: 2006
RPC(s): RPC 7.1,;7.5(a),(d);5.5(e); Formal Opinion 178
Subject: acknowledgement of a founding member of a law firm who is an Honorary Member of the Bar

The inquiry concerned whether a Founding Member of a law firm could continue to be designated on the letterhead of the firm if he was no longer in the active practice of law and does not meet the criteria for “Of Counsel” designation.

The Founding Member of the firm, a father of one of the present firm members, achieved honorary status with the Washington State Bar by having obtained 50-years member status. According to the inquiry, the Founding Member is 80 years old, and is “no longer in the active practice of law”, but the Firm calls on him from time-to-time to “lend “ his thoughts on matters involving clients. The inquiry seeks guidance on how to properly acknowledge the Founding Member on the firm’s letterhead. The firm presently designates the individual as “Honorary Member” on its letterhead.

In rendering this opinion, it is assumed that the individual is no longer in the active practice of law and is retired.

RPC 7.5(a) provides:

“A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1 or Rule 7.4.”

RPC 7.5(d) further provides as follows:

“Lawyers may state or imply that they are in practice in a partnership or other organization only when that is the fact.”

RPC 7.1 states:

“A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(a) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.”

The Committee is of the opinion that the designation “Honorary Member”, without further clarification, would violate RPC 7.1 and 7.5, in that it implies that the Honorary Member lawyer and the other lawyers are in a partnership, when in fact they are not. As the former firm member is no longer actively practicing law, this fact needs to be clearly stated so as to avoid any false or misleading communications and/or implying an association set forth in 7.5(d).

Likewise, the designation of “Honorary Member” without further clarification as to the retired status of the lawyer, is in the Committee’s opinion a violation of RPC 7.1 and 7.5 as it implies that the member is still practicing law.

Informal Opinion #1868 provides that an inactive lawyer may not use “Of Counsel” designation on a firm’s letterhead.

Informal Opinion #1994 provides that designating an attorney as “Retired” when he is practicing law would violate RPC 7.1 and 7.5.

Since the “Honorary Member” is no longer in the “active practice of law”, any designation on the letterhead must make this clear. The designation of “Honorary Member” without noting his retired status, misleads the public. However, if the firm merely wishes to acknowledge the retired lawyer’s contribution to the firm, Informal Ethics Opinion # 1994 allows the designation “retired”, followed by the year of retirement, to be placed after the retired lawyer’s name. The Committee suggests that using the term “Retired”, followed by the year of retirement, would eliminate any potential for misleading the public, by clearly stating the attorney is no longer practicing, as well as clearly defining the relationship between the Founding Member and the present Firm.

This opinion is limited to responding to the inquiry as to how to recognize and designate the founding member on the firms letterhead. The requesting partys attention is directed to RPC 5.5(e) regarding whether the founding member is engaged in the practice of law by lending his thoughts to the firm on client matters, and also Formal Ethics Opinion 178 dealing with the designation of an attorney as "Of Counsel”.