Ethics Opinion 338

Whether A Law Firm May Retain the Name of a Partner Who Becomes Both “Of Counsel” to that Law Firm and a Partner in a Different Law Firm Also Bearing His Name

A lawyer may have an “of counsel” relationship with one firm and be a partner in a different firm, so long as the lawyer’s “of counsel” association with the first firm is regular and continuing and the lawyer is generally available personally to render legal services to that firm’s clients; and the two firms are treated as one for conflicts of interest purposes. When a former partner continues to render legal services to the firm’s clients, that firm may retain the former partner’s name in the firm name, even though the former partner also practices in a new firm with a name that also includes his name.

Applicable Rules

• Rule 1.10 (Imputed Disqualification: General Rule)
• Rule 7.1   (Communications Concerning a Lawyer’s Services)
• Rule 7.5   (Firm Names and Letterheads)

Inquiry

A partner¹ of a firm bearing his name (“X”) is withdrawing from the partnership and becoming “of counsel.” He is the only lawyer in the firm practicing in the area in which he specializes. X intends to form a new firm in which he will be a partner, and that new firm will also include his name. This new firm will specialize principally in the area in which X specializes. The parties have agreed that each firm will redirect to the other any misdirected telephone calls, correspondence, or other communications and that the firms will have a unified conflict of interest policy.

Discussion

This inquiry raises the following questions: (1) whether X may be “of counsel” in one firm and a partner in another; and (2) whether the law firm may continue to include X’s name in the firm name after he withdraws as a partner and continues to practice with the firm in an “of counsel” relationship and whether, at the same time, X may have his name included in that of the new law firm that he will form and in which he also will practice law.

A. Practicing in More Than One Firm

D.C. Bar Legal Ethics Opinion 247 (1994) recognizes that a lawyer may have an “of counsel” relationship with a firm with respect to specific matters, while at the same time maintaining a separate practice with other lawyers in shared office space. Nevertheless, whether a former partner of a firm may be “of counsel” in one firm and a partner in another has not been specifically addressed in the District of Columbia. Nor is there any authority in this jurisdiction as to whether a lawyer may be a partner in more than one law firm.

The prevailing view among the various jurisdictions that have considered these issues is that a lawyer is not prohibited from being a partner in more than one firm if the firms are treated as one for imputation of conflicts.² The American Bar Association recognized that lawyers may simultaneously work for more than one law firm when it considered the ethical issues associated with the use of temporary lawyers by firms.³ Later, in ABA Formal Opinion 357 (1990), the ABA concluded that a lawyer could have a regular “of counsel” relationship with more than two firms and that “the lawyer is associated with each firm with which the lawyer is of counsel.”⁴ For purposes of attribution under Model Rule 1.10(a), the ABA concluded that all disqualifications of each firm will be attributed to the “of counsel” lawyer. In essence, the lawyer’s “of counsel” relationship with both firms effectively makes the two firms a single firm for conflict of interest purposes.

Likewise, D.C. Rule 1.10(a) provides that, “[w]hile lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rules 1.7 or 1.9 . . .⁵ In addition, our Opinion 247 concludes that an “of counsel” designation makes that lawyer “associated with the firm” for purposes of our Rule 1.10(a), and that a disqualification of a lawyer of the firm for which he is “of counsel” disqualifies the “of counsel” lawyer who maintained a separate practice even though he had had no involvement in the prior representation.

We conclude, based on the above analysis, that a lawyer may practice in more than one firm – specifically, that X may be “of counsel” in one firm and a partner in another. Because X will be “associated with” each firm for purposes of imputation under D.C. Rule 1.10(a), any disqualification of a lawyer in either firm will be imputed to all lawyers in both firms, unless excepted by Rule 1.10(a)(1) or (2).⁶ The firms, however, must be aware that to comply with the requirements of D.C. Rule 1.6, a firm may need to obtain a client or potential client’s permission to disclose, with respect to any new matter, sufficient information to the other firm so that both firms may check potential conflicts.⁷

B. Using the Lawyer’s Name in More Than One Firm Name

The second question presented by this inquiry is in two parts: (i) whether the firm from which X is withdrawing as a partner may continue to use X’s name in the firm name, and (ii) whether the firm that X is forming also may use his name in the firm name. In D.C. Bar Legal Ethics Opinion No. 277 (1997), we concluded that a firm may retain the name of a former partner who was severing her relationship with the firm, except where the former partner is practicing law elsewhere. We based our conclusions on D.C. Rules 7.5(a) and 7.1. Rule 7.5(a) provides:

A lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

Rule 7.1 states:

A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it:

(1) Contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading; or

(2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated. 

In Opinion No. 277, we noted that ethics opinions in the District of Columbia and elsewhere have long recognized that it is permissible for law firms to use trade names that include the names of deceased or retired partners. That Opinion also referenced ABA Formal Opinion 90-357 in which the ABA concluded that it would not be misleading to “use a retired partner’s name in the firm name, while the same partner is of counsel, where the firm name is long-established and well-recognized.”⁸

The inquirer in Opinion No. 277 was a founding partner of a law firm bearing her name. She wanted to have her name removed from the firm’s name after she withdraws and wanted to know whether the Rules of Professional Conduct would require the law firm to remove her name from the firm name once she departs. In her inquiry, she indicated that she did not know whether she would continue to practice after her withdrawal. We concluded that a law firm may retain in its name the name of a former partner, except where the former partner is practicing law elsewhere or where the firm is prohibited by law from retaining the name. We believed that if the former partner were practicing elsewhere, “the possible identifying value of the firm name as a trade name yields to the greater possibility that the public will be misled by retention of the departed lawyer’s name in the firm name.”  Opinion No. 277 noted that it would be misleading to include in a firm name the name of a lawyer who has ceased practicing with the firm but is, in fact, practicing elsewhere, presumably because it would imply that the lawyer who is practicing elsewhere had a continuing relationship with the firm from which the lawyer has withdrawn.

This inquiry demands a different conclusion than suggested by the proviso in Opinion No. 277 – that a withdrawing lawyer’s name may be retained in the firm name, unless the lawyer practices elsewhere. First, the facts here are distinguishable from those in that Opinion. Here, unlike the lawyer in that opinion, X will continue to practice with the firm as “of counsel,” while at the same time practicing at the second firm. Second, our rules do not prohibit the use of the lawyer’s name in the firm names under these the circumstances. More importantly, the District of Columbia Court of Appeals recently adopted new language in the commentary to D.C. Rule 7.5 that makes clear that Opinion No. 277 was focused on the following concern: that it is “misleading to continue to use the name of a lawyer formerly associated with the firm who currently is practicing elsewhere.”⁹ This prohibition clearly does not apply here because the former partner will not be “formerly associated” with the firm. Rather, the lawyer will continue to be associated with the firm.

In D.C. Bar Legal Ethics Opinion 332 (2005), we said that a lawyer may conduct his or her business under any trade name that does not constitute a false or misleading communication under D.C. Rule 7.1 about the lawyer’s services.¹⁰ Here, the question is whether including a former partner’s name in the old firm name, as well as in the new firm’s name will mislead the public. We conclude that if the lawyer has a regular and continuing association with both firms and will be generally available personally to render legal services at each firm that bears his name, using his name in the names of both firms is consistent with D.C. Rule 7.5(a). If, instead, he were to practice with only one of the firms, including his name in both could mislead the public. Under these circumstances, however, while using X’s name in both firm names may be unusual, it would not be misleading, so long as he maintains a regular and continuing association with both firms and is generally available personally to render services at each firm. We caution, however, that X must take special care to ensure that each client to whom he renders legal services understands which firm will be delivering legal services and responsible for the client’s legal matter.

DISSENT:

We three undersigned non-lawyer members of the Legal Ethics Committee hereby register our dissent to Part B of D.C. Bar Legal Ethics Opinion No. 338.

Rule 7.1(a) states that “[a] communication is false or misleading if it: ... (2) Contains an assertion about the lawyer or the lawyer’s services that cannot be substantiated.” According to the Inquiry, an attorney is leaving a firm where his name is in the firm name and setting up a second law practice where he will also be a named partner. It is contended by the inquirer that he will remain “of counsel” to the first firm and therefore, it would not be misleading to allow his name to continue to be used in the firm name, although he will become, in essence, a former partner and current “of counsel” attorney.

As the definitions and actual practices related to lawyers in “of counsel” roles are quite broad, we believe it is likely that allowing the inquirer’s name to be continued as part of the name of the firm he has essentially left is, at best, confusing and, at worst, misleading to potential clients. We find that simply designating “of counsel” on the letterhead, business cards, internet advertising, and the like, would be insufficient notice to prospective clients that the lawyer is practicing elsewhere in his own partnership or firm. (Partnership is a commonly understood term.)

As the majority acknowledges, Opinion No. 277 (1997) recognized that it was not improper for a firm to continue to use the name of retired or deceased members in the firm name. That we understand to be a longstanding practice and is acceptable because it identifies an entity that has become known to the public and carries a certain cachet. We believe that is an acceptable practice because it is not designed to fool the public but rather recognizes the distinguished service of superannuated or dead partners.

Opinion No. 277 quotes ABA Formal Opinion No. 357 (1990), which recognized that if a partner in a law firm is retiring to become “of counsel,” the lawyer’s name may be retained in the law firm’s name. According to the majority, we concluded in Opinion No. 277 “that a law firm may retain in its name the name of a former partner, except where the former partner is practicing law elsewhere or where the firm is prohibited by law from retaining the name.” The majority further recognized in Opinion 277 that, if the former partner were practicing elsewhere, “the possible identifying value of the firm name as a trade name yields to the greater possibility that the public will be misled by retention of the departed lawyer’s name in the firm name.” Even disclosing a dual association/relationship in writing to the client at the time of retention would not timely alert the prospective client to ask about the parameters of the lawyer’s “of counsel” relationship at the firms. It is, in our view, too little, too late. The client has already walked in the door under a false impression that is not cured by disclosure in a retention letter.

On this basis alone, we dissent.

Joseph Brent, PhD
Steven Ebbin, PhD
Donald Zauderer, PhD

Approved: October 2006
Published: February 2007

1. While the term “partner” is used throughout this opinion, the same analysis and conclusions apply to a shareholder in a law firm organized as a professional corporation or professional limited liability company, or a member of an association authorized to practice law. The term “firm” refers to any of the aforementioned entities as well as a sole proprietorship. See D.C. Rule 1.0 (c).
2. See Philadelphia Bar Ass’n Ethics Op. 2001-5 (2001); Md. State Bar Ass’n Comm. On Ethics Op. 88-45; Pennsylvania Bar Ass’n Ethics Op. 88-176 (undated); New Jersey Sup. Ct. Advisory Comm. On Prof. Ethics, Op. 637 (1990). The Supreme Court of Ohio Board of Commissioners on Grievances and Discipline disapproved lawyers being partners in more than one firm, see Opinion 1999-7 (1999), but in Opinion 2004-11 (2004), it concluded that an Ohio lawyer may practice law in Ohio and be of counsel to another firm in another state; or an out-of-state lawyer, not licensed in Ohio, may become of counsel to an Ohio lawyer or law firm.
3. See ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 88-356 (1988).
4. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 90-357 (1990).
5. Rule 1.10(a), effective 2/1/07. The prior version of this rule is identical to the rule quoted above, except that the prior version contained references to D.C. Rules 1.8(b) and 2.2 which have been deleted. These deletions do not affect the substantive analysis of this opinion.
6. This, of course, is not an issue here because the parties have agreed to treat both firms as one firm for purposes of conflicts of interest.
7. Under D.C. Rule 1.6, client consent would be required only if the information is a client confidence or secret.
8. See note 4 supra.
9. D.C. Rule 7.5, Comment [1] (effective 2/1/07); see D.C. Ethics Opinion 277 (1997) (Emphasis added).
10. Opinion 332 addressed the question whether a solo practitioner may use the word “firm” in the firm name.