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Ethics Opinion

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CI-1018

July 9, 1984

SYLLABUS

  1. A lawyer shall not hold himself out as having a partnership with one or more lawyers unless they are in fact partners.

  2. A professional corporation may join together with other lawyers in the practice of law, so long as a partnership exists and it is clearly indicated who is a professional corporation and who is not.

  3. There is no ethical prohibition on the simultaneous use of a lawyers own name (or the name of the lawyer's professional corporation), and the name of a partnership to which the lawyer belongs.

  4. A continuing regular and frequent relationship between lawyers in the handling of their legal businesses, other than as a partner or associate, may be sufficiently close to allow one lawyer to be designated as "of counsel" to the other.

    References: MCPR DR 2-102(A)(4), (B) and (C); CI-6, CI-111, CI-154, CI-167, CI-449, CI-472, CI-730, CI-749; ABA Op 330.

TEXT

A lawyer currently practicing under the structure of a professional corporation is contemplating entering into some form of professional relationship with another lawyer who is admitted to practice law in both Michigan and Florida but who presently maintains his office in Florida. The inquirer asks about establishing a practice between the two firms, either with the inquirer designated as of counsel to the multi-state lawyer, or maintaining a Michigan practice in Michigan under two designations, as the existing professional corporation and as a new entity consisting of the two lawyers.

MCPR DR 2-102(C) provides that "a lawyer shall not hold himself out as having a partnership with one or more other lawyers unless they are in fact partners." Any use of a firm name with the multi-state lawyer would be dependent on the existence of an actual partnership relationship between the inquirer and the multi-state lawyer, or the professional corporation and the multi-state lawyer. A professional corporation may join together with other lawyers in the practice of law, so long as a partnership relationship exists and it is clearly indicated who is a professional corporation and who is not. CI-154. Accordingly, it would be misleading and unethical to use any firm name in conjunction with the multi-state lawyer in the absence of a partnership relationship. See also, CI-6, CI-111, CI-167, CI-449, CI-730.

In the case of a partnership between lawyers admitted to practice in differing jurisdictions, jurisdictional limitations on the practices of individual lawyers must be noted. MCPR DR 2-102(D).

Assuming that a partnership relationship exists, an issue remains whether the lawyer may also continue to practice under the name of the professional corporation. This does not appear to be prohibited by ethics rules. MCPR DR 2-102(B) provides in part:

    "A lawyer in private practice shall not practice under . . . a name that is misleading as to the identity of the lawyer or lawyers practicing under such name, or a firm name containing names other than those of one or more of the lawyers in the firm . . . ."

The thrust of the Rule appears intended to prevent the misleading inclusion of names under which a lawyer practices. There appears to be no prohibition on the simultaneous use of a lawyer's own name (or the name of the lawyer's professional corporation) and the use of the name of the lawyer's partnership.

The second inquiry involves the potential use of your name as "of counsel" to the multi-state lawyer. MCPR DR 2-102(A)(4) permits use of the "of counsel" designation for a lawyer who has "a continuing relationship with a lawyer or law firm, other than as a partner or associate." The quality of that "continuing relationship" has been described as follows:

    "The lawyer who is described as being 'Of Counsel' to another lawyer or law firm must have a continuing (or semi-permanent) relationship with that lawyer or firm, and not a relationship better described as a forwarder-receiver of legal business; see DR 2-102(A)(4), and cf. DR 2-107(A). His relationship with that lawyer or firm must not be that of a partner (or fellow member of a professional legal corporation) nor that of an employee; see DR 2-102(A)(4). His relationship with the lawyer or law firm must be a close, regular, personal relationship like, for example, the relationship of a retired or semi-retired former partner, who remains available to the firm for consulting and advice, or a retired public official who regularly and locally is available to the firm for consultation and advise; see Informal Opinion 678 . . . . Generally speaking, the close, personal relationship indicated by the term 'Of Counsel' contemplates either that the lawyer practice in the offices of 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; see Informal Opinion 1134. The term obviously does not apply to the relationship which is merely that of a forwarder and receiver of legal business. In short, the individual lawyer who properly may be shown to be 'Of Counsel' to a lawyer or law firm is a member or component part of that law officer, but his status is not that of a partner or an employee (nor that of a controlling member of a professional legal corporation)."

ABA Op 330 (August, 1972).

The same description has been used in interpreting the Michigan Code. See CI-472, CI-749.

Under the facts as described, it does not appear that the proposed professional relationship between the inquirer and the multi-state lawyer A sufficiently close to use the "of counsel" designation. It would appear that the lawyers do not contemplate an actual sharing of office space, or that either lawyer would be in the other's state on any sort of regular basis. Instead, the inquirer desires to pick up portions of the multi-state lawyer's former Michigan practice while the multi-state lawyer is practicing in Florida. This relationship seems insufficient to qualify for the "of counsel" designation. This assumes there is no partnership, since the existence of the partnership itself would prohibit use of the "of counsel" designation.

 
     

 

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