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Ethics Opinion

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CI-1167

January 29, 1987

SYLLABUS

    It is not per se improper for a Michigan law firm maintaining a continuing relationship with law firm based in another municipality in the state (including the joint operation of a law office in a third Michigan location) to represent on the firm's letterhead such other firm as being "of counsel." For such a representation to be proper, however, the relationship must be close, regular, personal one, involving frequent contact, similar to that of a retired or semi-retired partner who remains regularly available to the firm for consultation and advice, which rises substantially above the forwarding or receipt of legal business.

    References: DR 2-102(A)(4), DR 2-107(a); CI-472, CI-1018.

TEXT

Two law firms are considering an association with the intention of jointly operating an office in a third location in another part of the state. The lawyers ask whether it would be proper for either firm to designate the other as "of counsel" on its letterhead.

MCPR DR 2-102(A)(4) states in part:

    ". . . [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."

The American Bar Association has described the ingredients of the "Of Counsel" relationship 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 law 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 advice, . . . . "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 frequently, if not daily, contact with the office of the lawyer or firm; . . . [citation omitted]." ABA Formal Op 330.

This definition has been adopted in both CI-472 and CI-1018, both of which dealt with "Of Counsel" designations with firms in other states. In each opinion, however, the location of the second firm in a distant municipality was more significant to the conclusion that no continuing relationship existed than the fact that the two firms or lawyers practiced in separate states. Accessibility and frequency and quality of contact are critical to a finding that a continuing relationship exists. If the practices of the two firms are so distinct and the face-to-face contact so infrequent that little reliance can be said to exist except as a means of minimizing office expenses and increasing business opportunities, the type of close relationship contemplated by the designation "Of Counsel" cannot exist and the use of such designation would violate DR 2-102(A)(4).

There is no ethical prohibition against the two firms jointly operating an office in a third location under separate names each with its own letterhead. There is no ethical prohibition on the use of a firm name as "Of Counsel" if the name of an individual partner practicing in the firm could have been so used. CI-1018.

 
     

 

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