June 25, 1991
When a named shareholder of a professional corporation retires from the active practice of law and is no longer a shareholder in the firm, but remains associated with the firm in "of counsel" status, the firm may retain the retired shareholder's name in the firm name where the firm name has been long-established and well-recognized and communications about the lawyer's status clearly indicate the lawyer is retired.
References: MRPC 7.1(a), 7.5(a), 7.5(d); RI-45, RI-59; CI-472, CI-617; ABA Op 90-357.
For a number of years, a law firm has been known as "A, B, & C, P.C." Shareholder A is retiring from the full-time, active practice of law and will no longer be a shareholder in the firm. He will, however, continue to be associated with the firm in an "of counsel" status performing legal services as an independent contractor pursuant to a written contract. The firm wishes to retain the present firm name without deleting A's name. The firm letterhead, interior office sign, business cards and law directory listings will indicate A's status as either "Retired - Of Counsel" or simply "Of Counsel."
The issue is whether the law firm may continue to use A's name in the firm name under these conditions. The law firm's ability to use the retired shareholder's name under these conditions is governed by MRPC 7.1 and 7.5, which state in pertinent part:
"Rule 7.1(a) A lawyer may, on the lawyer's own behalf, on behalf of a partner or associate, or on behalf of any other lawyer affiliated with the lawyer or the lawyer's law firm, use or participate in the use of any form of public communication that is not false, fraudulent, misleading, or deceptive . . . .
"Rule 7.5(a) A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1 . . . .
". . .
"(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact."
In RI-45, we stated:
"In sum, the rules require that lawyers be honest and clear in the representations which they make to the public regarding the nature of their practice. Firm names, letterhead, office signs, court pleadings, advertisements, and all other communications must accurately describe the nature of the relationship with other lawyers. Consumers of legal services have a right to understand what individual or entity they can look to for the provision of legal services and who they can hold responsible for the manner in which those services are provided."
The comments to MRPC 7.5 recognize that a law firm may be designated by the names of deceased members where there has been a continuing succession in the firm's identity. In an earlier interpretation of Michigan Code of Professional Responsibility DR 1-102(B), and Supreme Court Administrative Order 1978-4, this Committee held in CI-617 that a law firm may continue to use the name of a retired member of the firm where that retired member is no longer in the practice of law and provided that the firm name is accompanied by a notation indicating such person is retired. In that case this Committee held that if that retired lawyer has a continuing relationship with the law firm, the designation "of counsel" should be used.
For an "of counsel" representation to be proper, "the 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." CI-472. These conditions would be met under the present facts.
RI-59 addressed whether a shareholder in a professional corporation, who ceased to be a shareholder but continued as an employee with the firm, could appear in the firm name, and held it was unethical for the firm to continue to use the name of a former shareholder, since "[t]he inclusion of the name in the firm name implies the existence of a partnership or shareholder status which in fact does not exist." However, RI-59 distinguished its facts from the case of a deceased or retired shareholder's name being used in the firm name, which this Committee said "is explicitly allowed under the comment to MRPC 7.5."
The standard that must be used is whether the use of the name of the retired shareholder, who continues to be of counsel, in the firm name is "false, fraudulent, misleading or deceptive" under MRPC 7.1. In accord, ABA Op 90-357.
Under the present facts the firm name is long established and well recognized. Furthermore, the firm letterhead, office signs, advertising, etc., will clearly reflect A's "of counsel" status. Under such circumstances, this Committee concurs with ABA Op 90-357, that retention of the retired partner's name in the firm name while the partner is of counsel will not mislead or confuse the public regarding the nature of legal services provided.
In summary, where a named shareholder of a long established and well recognized law firm retires, but remains associated with the firm as "of counsel," the firm may continue to utilize the shareholder's name in the firm name, provided that:
- The firm name retained has been long established and well recognized;
- The retiring lawyer maintains the lawyer's exclusive "of counsel" relationship with the firm during continued practice that is close, regular and frequent; and
- The retiring shareholder and the law firm ensure description of the retired shareholder's status as "of counsel" in firm letterhead, signs, advertising, etc., and clearly indicate the lawyer's status as retired shareholder.