April 1, 1982
Letterhead indicating "of counsel" for relationships with out-of-state lawyers is not improper so long as the relationship is close, regular, and involving frequent contact. Such letterhead may indicate designations as to the areas of expertise such as legal consulting in a given filed so long as:
- The designations are not false, misleading, fraudulent or deceptive.
- The designations clearly indicate that out-of-state "of counsel" is limited to legal consulting work in his or her own jurisdiction only and not within the State of Michigan.
- The underlying relationship does not allow out-of state counsel to practice law within Michigan nor that the public is mislead in the same regard.
References: AO 1978-4; DR 2-102 (A)(4) and (D), DR 3-101(B).
Michigan lawyer holds a pharmaceutical license and an Ohio lawyer does computer program consulting. The Michigan lawyer asks whether or not it is ethically appropriate to employ the following letterhead based upon these pertinent facts:
Attorney & Counselor
Address Drug Therapy & Computer
Phone number Legal Research
I. The "Of Counsel" Designation:
DR 2-103(D) which has been superceded by Order of the Michigan Supreme Court, AO 1978-4 states:
"A partnership shall not be formed or continued between or among lawyers licensed in different jurisdictions unless all enumeration of the members and associates of the firm on its letterhead and in other permissible listings make clear the jurisdictional limitations on those members and associates of the firm not licensed to practice in all listed jurisdictions; however, the same firm name may be used in each jurisdiction."
AO 1978-4 permits "advertising" so long as it is not "false, fraudulent, misleading, or deceptive."
Prior treatment of the "of counsel" issue has been opined by this committee. CI-472 held it not per se improper for out-of-state counsel listed on a letterhead as "of counsel" citing as authority DR 2-102(A)(4). CI-472 states:
"[T]he relationship must be a close, regular, personal one, involving frequent contact, similar to that of a retired or semi-retired partner who remains available to the firm for consulting and advice."
Informal Opinion 1355 of the ABA parallels the above-cited Michigan Opinion.
In complying with the spirit of AO 1978-4 several suggestions nonetheless appear. First, it is recommended that Ohio lawyer's name and the designation "of counsel, not admitted in Michigan" or "Ohio of counsel, not admitted in Michigan" is segregated on the letterhead, preferably in the right hand corner. The reason behind such suggestion is to comply with the spirit of AO 1978-4 so that no member of the public would likely be mislead. In further support, refer to CI-646 which held that such designation is proper "if and only if the firm's letterhead and other notifying documents set out the definitive jurisdictional limitations of each of the members of the firm."
II. The Designation of Drug Therapy & Computer Program Evaluation/Legal Research
The main concern regarding such designation it that it may mislead or deceive members of the public contrary to AO-1978-4. The mainstay of that administrative order, continuing in effect, is as stated, that "advertising" is permissible so long as it is not false, fraudulent, misleading or deceptive. The inquiry does not end here. Such designation as proposed is defective in several respects. First, it does not indicate who is the pharmaceutical designee nor who is the computer program evaluation designee. In this sense, such designation is misleading. Also, one must wonder reading the designation whether or not there is a commingling of professions. It should be made abundantly clear on the letterhead that (and assuming the same is true) you are a legal consultant to the pharmaceutical industry and that you are not acting under any license through any pharmaceutical licensing agency. CI-596 and CI-598 indicate that it is proper for a lawyer to disseminate literature which promotes his or her other businesses, where the lawyer's qualifications in those other businesses are related to the law practice so long as the intent of AO 1978-4 are met. These opinions are limited to the lawyer's attorney stationary; not stationary for the lawyer's other business interests.
More troublesome, however, is whether or not the Ohio of counsel can have his or her specialty designated on the letterhead as computer program evaluation. Clearly, the Ohio lawyer is not licensed to practice law in the State of Michigan as implied by the inquiry, Canon 3 and DR 3-101(B) both indicate that a lawyer cannot practice law in a jurisdiction where "to do so would be in violation of the regulations of the profession in that jurisdiction" clearly, should Ohio counsel come to Michigan and practice "law," is in clear violation of this Canon.
As far as the Michigan question is concerned, so long as the Ohio lawyer is designated as limited to computer/legal consultation in the state of Ohio only, the bane of AO 1978-4 appears to be overcome and Canon 3 would have no interplay. In support of this position, CI-646 held it proper "to register and list in telephone directories and or pleadings the Ohio law firm name designation, supra, in the state of Michigan . . . ." However, that opinion went on to clearly indicate that "any and all appearances of impropriety should and must be steadfastly avoided."
Thus, as stated, so long as, pursuant to part II of this opinion, it is clearly and unambiguously indicated that the Ohio lawyer only takes computer/legal consulting in the state of Ohio, there should be no difficulty vis-à-vis the Ethics Disciplinary Rules of Michigan. Nonetheless, the Ohio lawyer should secure in informal opinion from the Ohio Bar so as not to jeopardize his/her status in that jurisdiction.