Legal Ethics Opinion #1554

Advertising and Solicitation--Letterhead: Retired Lawyer Not
Actively Participating as "Counsel" or "Of Counsel."

You have presented a hypothetical situation in which an elderly
lawyer, retired from his law firm, would like to continue to
maintain an office in the firm and assume the status of Counsel
to the firm.  However, neither he nor his firm intends that he
will actively engage in the practice of law (though he will be
available for consultation with other lawyers at the firm
regarding former clients and other matters).

You have asked the committee to opine whether, under the facts of
the inquiry, it is proper for a retired lawyer, no longer
actively practicing law, but still with an office at the firm and
maintaining contacts with and offering counsel to the firm, to be
referred to as "Counsel" or "Of Counsel" to his former firm.

The appropriate and controlling disciplinary rules relative to
your inquiry are DR 2-l0l(A) and DR 2-l02(A), which provide in
pertinent part that a lawyer or law firm shall not use or
participate in the use of any form of public communication,
professional card, letterhead, telephone directory listing, or
similar professional notice or device if such communication or
professional notice
contains a false, fraudulent, misleading, or deceptive statement
or claim.  Further guidance is available through Ethical
Considerations 2-l3 and 2-l5 which describe circumstances in
which a firm name or identification may be construed to be
misleading.

The committee has previously opined that the term "of counsel"
denotes an expectation that the lawyer is engaged in the practice
of law, either directly in the offices of the law firm to which
he is "of counsel" or in separate offices but who, by virtue of
past partnership or affiliation, continues to maintain direct
contact with the firm and its clients.  Relevant prior Opinions
indicate that the relationship turns on the actual practice of
law and is not satisfied by a mere business or financial
relationship with the firm, a sporadic affiliation over time, or
the status of a forwarder or receiver of legal business.  Those
Opinions were, in large part, predicated upon the committee's
adoption of conclusions reached in ABA Formal Opinion 330 (August
l972).  See LEOs #1293, 1341, 1342.

The committee is cognizant of the issuance of ABA Formal Opinion
90-357 (May l0, l990), superceding ABA Formal Opinion 330, which
significantly broadened the acceptable use of the term "of
counsel" to include several lawyer-law firm relationships beyond
the actual practice of law.

In the facts you present, the committee is of the opinion that
the arrangement you describe, that of a retired lawyer who offers
counsel to the firm and its lawyers on matters including those
related to former clients, would appropriately be referred to as
an "of counsel" relationship.  The committee thus adopts the view
of (only) that portion of ABA Formal Opinion 90-357 related to an
ongoing association between a retired lawyer and his (former)
firm: the denomination "of counsel" may properly be applied to
designate a retired lawyer of the firm who, although not actively
practicing law, nonetheless remains associated with the firm and
available for occasional consultation.  The committee cautions
that the use of such designation would be improper, however, if
the association was limited to a pure business affiliation such
that the retired lawyer's responsibilities would be limited to
either the development of business or the management of the
firm's business activities.

To the extent that this Opinion is in conflict with prior LEOs
#l282, l293, l34l, and l342, relevant portions of those Opinions
are hereby overruled.

Committee Opinion
October 22, 1993