FLORIDA BAR ETHICS OPINION
April 30, 2000
Advisory ethics opinions are not binding.
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.
71-49, 75-41, 94-7, ABA Formal Opinion 90-357, Ohio Opinion 91-18; Michigan
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.