Opinion 75-41
FLORIDA BAR ETHICS OPINION OPINION 75-41 March 30, 1976 Advisory ethics opinions are not binding. The designation “Of Counsel” may be used to describe either a continuing relationship between a firm and a former partner or associate or a new relationship formed between a lawyer and another lawyer or law firm. CPR: Opinions: DR 2-102(A)(4), DR 2-102(B), EC 2-11 66-64, 70-29, 70-36, 71-49, 72-29 ABA Informal Opinion 1189 Vice Chairman Sullivan stated the opinion of the committee: This inquiry involves an interpretation of DR 2-102(A)(4) regarding permissible use on letterheads of the designation “Of Counsel.” The inquirer, a member of The Florida Bar, is employed as a professor of law at one of the law schools in the state. He is recognized as an authority in his area of specialization and has consulted on a case-by-case basis with various law firms in the state on problems involving his particular field. With the consent of the law school, he has entered into a contract with a law firm in the state to make his services available to that firm. He is neither a partner nor associate of that firm and, by agreement, will not be a partner or associate of any other lawyer or law firm nor will he consult with or give legal advice to any client except in his contractual capacity with the firm with which he has become affiliated. Although he teaches law full time, he will be in the law firm’s offices weekends as he is needed and will consult and give legal advice during the week by telephone and letter. He asks whether he may properly be designated “Of Counsel” to the firm. A majority of the Committee is of the opinion that this designation is permissible, but in approving the designation, does so subject to the prohibitions in DR 2-102(B) and EC 2-11 about practicing under a name that is misleading as to identity of the lawyers and their responsibility and status. DR 2-102(A)(4) provides only that a lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm other than as partner or associate. In prior opinions, the Committee has indicated that the term “Of Counsel” is hardly one of precision but has most frequently been used to describe the relationship for a former member or associate of a firm who continues his relationship with the firm but in a less active role. Opinions 66-64 [since withdrawn], 70-29, 70-36 [since withdrawn], 71-49, 72-29. Those opinions did not deal with an interpretation of “continuing relationship” as used in DR 2-102(A)(4). The Committee majority would not limit its interpretation to include only lawyers with a prior relationship with the firm either as partners or associates but would allow it to be used to designate a new relationship between a lawyer and another lawyer or law firm, if otherwise appropriate. Here the lawyer will be available to the law firm on a daily basis, in person on weekends, by telephone and letter during the week. He will not practice law independently or with any law firm other than the firm with which he has contracted. The Committee majority believes that this is sufficient to meet the “continuing relationship” requirement. A minority of the Committee, relying upon Opinions 66-64, 70-29, 70-36 interpret “continuing relationship” as used in DR 2-102(A)(4) [as referring to] to situations where there was a prior relationship between lawyer and law firm and disapprove the “Of Counsel” designation here for the further reason that they believe approving its use would lead to the danger of law firms hiring former judges, public officials and other luminaries and result in misleading the public about the nature of the relationships. See ABA Informal Opinion 1189 (1971).