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Ethics Opinion

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CI-617

April 6, 1981

SYLLABUS

    A law firm may continue to use in its firm name the mane of a firm member who remains a member of the firm but takes full-time employment of indefinite duration elsewhere, provided that such employment is not in a judicial, legislative, or public executive or administrative post or office, and further provided that use of the firm name is accompanied by a notation indicating that the member in question is "on leave" or "on leave of absence."

    A law firm may continue to use in its firm name the name of a retired member of the firm, such a retired member being one who is retired from the practice of law itself, so long as such retired member does not assume a judicial, legislative, or public executive or administrative post or office, and further provided that use of the firm name is accompanied by a notation indicating that such person is retired.

    A lawyer may be designated "Of Counsel" on a letterhead if the lawyer has a continuing relationship with a lawyer or law firm, other than as a partner or associate.

    References: DR 2-102(A) and (B); Administrative Order 1978-4.

TEXT

A lawyer is considering accepting a position as a visiting professor or professor at a law school; if the lawyer accept such a position the lawyer would within an estimated period of one to three years determine whether to devote permanently to teaching (in which case the lawyer would presumably sever all ties with the firm) or to give up teaching and return to practicing law with the firm. You inquire as to:

  1. The propriety of continuing your name in the firm name during the period of your association with any law school.
  2. What notice should appear on your letterhead and any announcement to signify your diminished role in the firm during the leave (e.g., "Of Counsel'" or "on Leave" in the individual listing of names or the omission of your name from the individual list of names.

The provision of the Canons most directly on point is DR 2-102(B) that states:

    "A lawyer in private practice shall not practice under a trade name, 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, except that the name of a professional corporation or professional association may contain 'P.C' or 'P.A' or similar symbols indicating the nature of the organization and if otherwise lawful 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. A lawyer who assumes a judicial, legislative, or public executive or administrative post or office shall not permit his or name to remain in the name of a law firm or to be used in professional notices of the firm during any significant period in which he or she is not actively and regularly practicing law as a member of the firm, and during such period other members of the firm shall not use his or her name in the firm name or in professional notices of the firm."

Use of ". . . a firm name containing names other than those of one or more of the lawyers in the firm . . ." is improper, except that ". . . if otherwise lawful 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 . . . ." It therefore appears, subject to the qualifications set out in the following paragraphs, that the firm may continue to use your name as part of the firm name during that one to three-year period of association with the law school if at all times during that period you are either a member of the firm or are ". . . a retired member[s] of the firm." The last sentence of DR 2-102(B), requiring that a lawyer's name not be used as part of the firm name unless the lawyer is ". . . actively and regularly practicing law as a member of the firm . . ." applies only in the case of a lawyer ". . . who assumes a judicial, legislative, or public executive or administrative post or office . . . ."

The first qualification concerns the meaning of the phrase ". . . retired members of the firm." The question arises whether that phrase refers simply to members retired from the firm in question, or rather to members retired from the practice of law itself. The latter interpretation must prevail, and that the exception in DR 2-102(B) permitting use of a retired member's name in the firm name only permits the use of the names of members who have retired from the practice of law itself, and remains applicable only so long as such embers remain retired from the practice. Should such a member, once so retired, ever resume the practice of law, anywhere, other than with the same firm, the firm's continued use of his or her name would be improper. To hold otherwise would clearly permit a practice "misleading" and "deceptive" in violation of both the requirement of DR 2-102(B) that "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 . . ." and the provisions of Supreme Court Administrative Order 1978-4 limiting permissible public communications to those which are ". . . not false, fraudulent, misleading or deceptive."

The second qualification concerns the further requirements of that same language of DR 2-102(B) and that Order, for although you might be "retired," or might remain a member of the firm, it is still necessary that the fir name not be misleading.

The firm's continued use of your name during the period of your employment at the law school, assuming you retired or, although remaining a member of the firm, did not practice as a member of the firm, would, without more, be ". . . misleading as to the identity of the lawyer or lawyers practicing under such name . . ." and would thus constitute a violation of both DR 2-102(B) and Administrative order 1978-4. Should you retire, an appropriate notation on the letterhead so indicating would cure this difficulty. ( See ABA Informal Opinion 505 and DR 2-102(A)(4) sanctioning use of such a notation.) Should you remain a member of the firm, the difficulty would b cured by an appropriate notation on the letterhead that you are "on leave" or "on leave of absence." (See ABA Informal Opinion 620 sanctioning use of such a notation).

Should you retire, and should the firm choose not to continue to use your name as part of the firm name, your name could still properly appear on the letterhead with the designation "Of Counsel," assuming the requirements of DR 2-102(A)(4) for use of that designation were satisfied. The inquiry does not provide sufficient information concerning the proposed relationship between you and the firm to enable this Committee to determine as a factual matter whether the use of the designation would be proper.

 
     

 

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