The Florida Bar
PROFESSIONAL ETHICS OF THE FLORIDA BAR
April 30, 2000
April 30, 2000
A law firm may continue to use a firm name which contains the name of a former partner of the firm who has retired and become a traditional "of counsel" to the firm, by offering legal services only through the firm.
Opinions: 71-49, 75-41, 94-7, ABA Formal Opinion 90-357, Ohio Opinion 91-18; Michigan Opinion RI-90 A member of the Florida Bar has sought the Committee's guidance on the use a firm name. A partner in the law firm has become "of counsel" to the firm and will continue to represent clients at the firm's office. The firm would like to continue to include the "of counsel" attorney's name in the firm name.
Historically, the appellation "of counsel" designated a retired or semi-retired former partner who continued to be available to the firm. The present use of the term "of counsel" has broadened and can be used to identify an attorney who maintains a close, continuing relationship with a firm, but is neither a partner, an associate nor a shareholder. Opinions 71-49; 75-41; 94-7; ABA Formal Opinion 90-357. In addressing the application of the fee division rules to "of counsel" attorneys, the Committee has made a distinction between an attorney who is "of counsel" as the term was traditionally used, and an "of counsel" attorney who does not practice exclusively through the firm. Opinion 94-7. The Committee concluded that the rules governing the division of fees between attorneys who are not in the same firm apply to the division of fees with an "of counsel" attorney unless the "of counsel" attorney practices exclusively through the firm in the traditional sense of the word.
The Committee has previously considered a proposal to maintain a firm name which contains the name of a former partner who becomes "of counsel" to the firm. Opinion 71-49 concludes that, although a partner who withdraws from a firm to handle the firm's referred trial work at an adjacent independent office may be designated "of counsel" on the firm's letterhead, it would be misleading to continue to include the former partner's name in the firm name. This committee has not, however, addressed the continued use of a firm name that includes the name of a former partner who continues to work at the firm under the traditional use of the term "of counsel." Ethics committees that have considered this issue have found that it is not misleading to include a partner's name in a firm name when the partner retires and becomes "of counsel." ABA Formal Opinion 90-357; Ohio Opinion 91-18; Michigan Opinion RI-90. Both the Ohio and the Michigan opinion require that the firm's name be established and recognized. This committee agrees with those opinions and further requires that the retired partner be "of counsel" in the historical sense, working exclusively through the firm, and that the designation "of counsel" appear with the attorney's name on the firm's letterhead.