April 30, 1984
A law firm may not retain in the firm name the name of a partner who has left the firm and accepted employment elsewhere, because to do so would mislead the public as to the relationship existing between the firm and the lawyer.
A lawyer may not be listed on former firm letterhead as "of counsel" after leaving the firm and accepting employment elsewhere, when there is not a close and continuing relationship between the lawyer and the firm.
Reference: MCPR 2-102(A)(4), DR 2-102(B); Administrative Order 1978-4.
A, B, C & D, P.C., consists of stockholding "partners" and non-stockholding associates. Only the firm's partners have a voice in its management. LJC, a former partner of A, B, C & D, has left the firm and accepted a position as general counsel at Z, Inc. A, B, C & D, however, continues to use LJC's name in its firm name and lists him on its letterhead as "Of Counsel." LJC receives nominal compensation for the continuing relationship; the relationship is not a close one and the compensation is minimal.
MCPR DR 2-102(B) provides, in pertinent part:
"(A) firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession."
Initially, it must be determined whether this rule is consistent with Administrative Order 1978-4, which provides:
"A lawyer may on behalf of himself, his partner or associate, or any other lawyer affiliated with him or his firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive. Except for DR 2-103 and DR 2-104, disciplinary rules in conflict with this order are suspended . . . ."
The rule would seem to be consistent with the Order and continues to be applicable. Both the rule and Order prohibit the use of LJC's surname as part of the firm name when he has neither retired nor is responsible for firm decisions because he is employed elsewhere. The rule contemplates a person who retired from employment while a member of the firm that bears his name. Acceptance of other employment before retirement makes the DR inapplicable and the firm may not retain the name pursuant to it. Moreover, the continuing use of an individual's name in a firm indicates either that the individual was a partner in the firm and is now deceased or retired, or is still a partner in the firm and responsible for firm decisions. Inclusion of a lawyer's name in a law firm's name when he has accepted employment elsewhere would mislead the public as to his relationship with the firm and is prohibited.
MCPR 2-104(A)(4), provides in pertinent part that:
"A lawyer may be designed 'Of Counsel' on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as partner or associate."
The rule is consistent with Administrative Order 1978-4, in that a designation of "of counsel" absent a continuing relationship would be misleading. Therefore, since LJC is employed on a full-time basis by Z, Inc., he cannot meet the requirement of a continuing relationship and may not be listed as "of counsel" to A, B, C & D. Support for this position can be found in the Annotated Code of Professional Responsibility published by the American Bar Foundation, which states:
"The Committee has devoted much consideration to the exception in DR 2-102(A)(4) with reference to the 'of counsel' arrangement and in the court of its deliberations found it necessary to define this relationship. Opinion 330, August 1972, stated that the 'of counsel' relationship must be a 'close, regular, personal relationship' and 'either that the lawyer or law firm to which he is 'Of Counsel' or that his relationship, for example by virtue of past partnership of a retired partner that has led to continuing close association, be so close that he is in regular and frequent, if not daily, contact with the office of the lawyer or firm.
. . . .
"In Opinion 1189, September 8, 1971, the Committee held that an 'Of Counsel' relationship must involve 'close daily in house association free and clear of problems and conflict." Id at 58.
Because the relationship between LJC and A, B, C & D is not a continuing one within the meaning of MCPR 2-102(A)(4), he may not be listed as "Of Counsel" on A, B, C & D's letterhead. Such a listing would be improper because of the misleading character of listing a lawyer that is practicing law as general counsel with a corporation as also "Of Counsel" to a particular firm which also retains that lawyer's surname as part of the firm's name.