Year 2005 Ethics Opinions
THE ASSOCIATION OF THE BAR OF THE CITY OF NEW
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
FORMAL OPINION 2005-06
Topic: Retired attorneys’ use of professional
letterhead and special disclosure obligations to clients and prospective
Code Sections: DR 1-102, DR2-101, DR 2-102, DR 6-101,
EC 6-1, and EC 6-2.
Question: When an attorney who is retired from the
practice of law nonetheless wishes to continue performing legal services
(a) may that attorney use professional letterhead and (b) must that attorney
make any special disclosures to clients and prospective clients?
Unlike in several other states, where retired attorneys are precluded
from practicing law, in New York a retired attorney may continue to practice
law, but that attorney may not charge a fee. (1) N.Y.
Comp. Codes R. & Regs. tit. 22, § 118.1(g) (2003) provides,
No [biennial registration] fee shall be required from an attorney who
certifies that he or she has retired from the practice of law. For purposes
of this section, the “practice of law” shall mean the giving
of legal advice or counsel to, or providing legal representation for,
a particular body or individual in a particular situation in either the
public or private sector in the State of New York or elsewhere, it shall
include the appearance as an attorney before any court or administrative
agency. An attorney is “retired” from the practice of law
when, other than the performance of legal services without compensation,
he or she does not practice law in any respect and does not intend ever
to engage in acts that constitute the practice of law.
In New York, attorneys who certify that they are retired from the practice
of law are also exempt from continuing legal education (“CLE”)
requirements. N.Y. C omp. Codes R. & Regs. tit. 22, § 1500.5(b)(4)
Under these rules, retired attorneys may still practice law, albeit
without compensation, and they are exempt from the biennial fee and from
CLE requirements. But the rules do not address whether retired attorneys
(a) may use professional letterhead and (b) should disclose to clients
and prospective clients that they are retired and what that status entails.
Retired Attorneys’ Use of Professional Letterhead
As a threshold matter, New York allows attorneys to use professional
letterhead if doing so does not “violate any statute or court rule,” DR
2-102(A), and is not “false, deceptive, or misleading,” DR
2-101(A). See also Model Rules of Prof’l Conduct R.7.1 & 7.5
(2004) (prohibiting the use of letterhead that is false or misleading).
New York allows only those who are licensed and admitted to practice
law to hold themselves out as “attorneys-at-law.” See N.Y.
Judiciary Law § 478 (McKinney 2004). Thus, so long as a retired
attorney remains licensed and admitted in New York, there is no statute
or court rule prohibiting that retired attorney from using professional
letterhead. Nor is it otherwise false, deceptive, or misleading for that
retired attorney to use professional letterhead stating that he or she
is an “attorney-at-law.”
Under the Code of Professional Responsibility, there is also no requirement
that the attorney disclose on professional letterhead that he or she
is retired. See DR 2-102(A)(4) ( “A letterhead of a law firm may
also give the names of members and associates, and names and dates relating
to deceased and retired members.”).
We therefore conclude that a retired attorney may use professional letterhead
and may, but is not required to, disclose on that letterhead that he
or she is retired.
Retired Attorneys’ Disclosure Obligations to Clients and Prospective
We turn next to the question whether retired attorneys have any special
disclosure obligations to clients and prospective clients.
DR 1-102(A)(4) provides, “A lawyer or law firm shall not: Engage
in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Thus,
a retired attorney is prohibited from misleading a client or potential
client about the retired attorney’s ability to charge a fee or
satisfaction of CLE requirements.
Separately, DR 6-101(A) provides that an attorney must handle a matter
competently and with adequate preparation: “A lawyer shall not:
1. Handle a legal matter which the lawyer believes or should know that
he or she is not competent to handle, without associating with a lawyer
who is competent to handle it” and “2. Handle a legal matter
without preparation adequate in the circumstances.”(2)
There is no reason to believe that retired attorneys are less conscientious
than other members of the Bar about conforming their conduct to the Code.
Thus, there is no need for any special requirement that a retired attorney
reflexively disclose to every client or prospective client that the retired
attorney cannot charge a fee or is exempt from CLE requirements. Furthermore,
with respect to CLE, DR 6-101(A) nonetheless applies with full force
to retired attorneys, who must – regardless of any CLE exemption – handle
the matters that they undertake competently and with adequate preparation.
To that end, retired lawyers who practice would be well advised to maintain
their skill and knowledge, whether through CLE programs, self-study,
Conclusion: Attorneys who are retired from the practice
of law (a) may use professional letterhead; (b) may, but are not required
to, disclose on that letterhead that they are retired; and (c) are not
obligated to specially disclose to clients or prospective clients that
they (i) may not charge a fee or (ii) are exempt from the CLE requirements
that are mandatory for all other New York attorneys.
1. See, e.g., UT Eth. Op. 00-02,
2000 WL 347377 (Utah St.Bar) (“In all jurisdictions surveyed by
the Committee for purposes of this opinion, lawyers on inactive status
are precluded from engaging in the practice of law”); OH Adv. Op.
92-4, 1992 WL 739414 (Ohio Bd.Com.Griev.Disp.) (“[A]n attorney
granted ‘inactive’ or ‘retired’ registration
status shall not be entitled to practice law in Ohio . . . The language
of the current rule sweeps broadly with a restrictive intent . . . [A]ttorneys
with ‘inactive’ or ‘retired’ registration status
may not perform the duties [even] of a paralegal or student law clerk
because of the express requirement of the Supreme Court of Ohio that
these attorneys [also] may not ‘render any legal service for an
attorney granted active status.’”); People v. Newman, 925
P.2d 783, 784 (Colo. 1996) (lawyer publicly censured for inter alia implying “that
he was licensed to practice law in Colorado even though he was on inactive
2. See also EC 6-1 (“The
lawyer should strive to become and remain proficient in his or her practice
and should accept employment only in matters which he or she is or intends
to become competent to handle.”); EC 6-2 (“A lawyer is aided
in attaining and maintaining competence by keeping abreast of current
legal literature and developments, participating in continuing legal
education programs, concentrating in particular areas of the law, and
by utilizing other available means.”).
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