The Florida Bar

Ethics Opinion

Opinion 70-64

FLORIDA BAR ETHICS OPINION
OPINION 70-64
February 22, 1971
Advisory ethics opinions are not binding.
A public official who is no longer actively and regularly practicing law cannot allow his name to be
used in his law firm’s name or in the firm’s professional notices. An attorney who is elected to
Congress is considered no longer actively and regularly practicing.
Note: The purported quotation in this opinion from ABA Formal Opinion 192 is actually a
quotation from ABA Informal Opinion C-620 (March 13, 1963), which in turn was quoted in
ABA Formal Opinion 315.
CPR:
Opinions:

EC 2-12; DR 2-102(A), (B)
ABA 192, 315, 318 (Section V)

Chairman Massey stated the opinion of the committee:
Inquiry is made as to the application of CPR DR 2-102(B) when a member or an
associate of a law firm is elected to the United States Congress and who prior to
election practiced law on a full-time basis and intends to return to full-time practice at
such time as he no longer holds the public office. The pertinent portion of the rule is:
A lawyer who assumes a judicial, legislative, or public executive or administrative
post or office shall not permit his name to remain in the name of a law firm or to be
used in professional notices of the firm during any significant period in which he is not
actively and regularly practicing law as a member of the firm, and during such period
other members of the firm shall not use his name in the firm name or in professional
notices of the firm.
More specifically, the question involves an interpretation of the words “actively
and regularly practicing law.” Also see, EC 2-12.
This is an important question and one which has not been presented to the American Bar
Association since its adoption of the Code of Professional Responsibility. Although certainly this
Committee would be interested in the position of the ABA, it has been determined that the inquiry
should be answered by the Florida Committee without delaying its response to ascertain whether and
what consideration the ABA and its appropriate committee will give to the question.
The Committee concludes that a member of the United States Congress in all probability
cannot “actively and regularly” practice law as a member of a law firm. It seems clear that EC 2-12
and DR 2-102(B) attempt to recede substantially from the majority opinion expressed in ABA Formal
Opinion 315 and subsequently ABA Formal Opinion 318 (Section V). Although federal law does not
prohibit congressmen or senators from engaging in private practice of law (except certain specified
situations), it seems equally observable that a congressman or senator could not participate in active or
regular practice of the law because he is a full-time public servant and he simply does not have the
time or physical presence to qualify as an active and regular practitioner of the law. As was pointed out
in ABA Formal Opinion 192:

Where members of the legal profession are elected to the United States Senate, to
the House of Representatives, and to state and local offices, it is not uncommon for
them to continue the use of their names in the firms of which they are members.
Doubtless this practice has been established because these positions were at least
originally considered part-time only. In recent years, of course, a United States Senator
or Representative is in fact pretty well occupied full-time in Washington, except for a
limited vacation period.
The cited Opinion 192 was decided February 18, 1939, and to say the least, the time
requirements upon a United States congressman or senator have not decreased through the years. It is,
therefore, the Committee’s conclusion that unless in the unlikely case of the congressman or senator
whose public duties do not prevent him from in fact “actively and regularly” practicing law as a
member of a law firm, his name cannot remain in the name of the law firm.
Having concluded under the stated circumstances that the man’s name cannot remain in the law
firm name, said name cannot be used in “professional notices” of the firm (DR -102(B)). The text of
DR 2-102(A) speaks of “professional cards, professional announcement cards, office signs, letterheads,
telephone directory listings, law lists, legal directory listings, or other similar professional notices or
devices,” which indicates that the categories mentioned fall under a generic term of “professional
notices or devices.” This being the case, not only should the congressman’s or senator’s name under
the stated circumstances not remain in the name of a law firm, but the Code of Professional
Responsibility also requires his name not be shown in any manner in professional notices, which
would include the categories specified, supra.
Further, in contemplation of EC 2-12, assuming the attorney-member of congress is not
actively and regularly practicing law, he should not be identified as a past or present member of the
firm and should not hold himself out as being a practicing lawyer. This would preclude his name
appearing in any manner on the firm’s letterhead or other professional notices, even with the
designation of being “inactive,” “of counsel,” or other similar identification.
The Committee does not conclude that a member of the United States Congress can never
actively and regularly practice law, as the Committee cannot interpret and rule upon every
circumstance to the end of stating it is impossible for such person to do so. The Committee must,
however, express its feeling that it would be most unusual for any member of the United States
Congress to be able to “actively and regularly” practice law because of the demands and
responsibilities upon him in performance of his duties of public office. The compensation of a member
of the United States Congress is much more substantial today than in prior years and the tradition of a
senator or congressman of continuing to maintain private law practice while serving in his office may
no longer be generally supportable. As dictum, the Committee observes this latter conclusion may well
be true of other offices than that of United States congressman. On the other hand, the Committee does
recognize that some public office holders, in fact many public office holders, have less demanding
positions and may be able to “actively and regularly” practice law, excepting during insignificant
periods of time. The CPR does not define “significant” within the framework of DR 2-102(B). The
Committee, however, concludes that a “significant” period of time in which a person is not actively
and regularly practicing, within contemplation of the rule, normally does include any member of the
United States Congress elected to a full term of office or appointed to an expired term of office for that
period of time such person is actively and regularly engaged in his public endeavors.