Ethics Opinion

Summary: It is not improper for a lawyer or law firm to list a professional corporation of attorneys on its letterhead as "of counsel,, so long as the relationship between the lawyer or law firm and the professional corporation is such that the listing is not deceptive.

Facts: A law firm has asked whether it may identify a professional corporation of lawyers as "of counsel" to the firm on its letterhead.

Discussion: The relevant provision of Supreme Judicial Court Rule 3:07, DR 2-102(A), reads as follows:
(A) A lawyer or law firm shall not knowingly use or participate in the use of a professional card, professional announcement card, office sign, letterhead, telephone directory listing, law list, legal directory listing, or a similar professional notice or device which includes a deceptive statement or claim.
The fact that the lawyer or lawyers who are to be listed as "of counsel" practice in the form of a professional corporation does not by itself make it deceptive to describe the professional corporation as "of counsel." The determining factor is the nature of the professional relationship between the lawyer or law firm and the professional corporation.
Prior to 1979, DR 2-102 provided that it was proper to designate a lawyer as "of counsel" if he had a continuing relationship with a lawyer or law firm other than as a partner or associate. The present rule provides no such guidance.
As a general rule, the committee is of the view that it would be deceptive under the present rule for a lawyer or law firm to identify another lawyer or law firm as "of counsel" unless they have continuous and regular dealings that involve the rendering of legal advice by one to the other. We should point out that an "of counsel" attorney is an affiliated lawyer of a law firm for purposes of the disqualification provisions of DR 5. See DR 5-105(D).