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THE ASSOCIATION OF THE BAR OF THE CITY OF NEW YORK
FORMAL OPINION 1995-9
COMMITTEE ON PROFESSIONAL AND JUDICIAL ETHICS
May 31, 1995
ACTION: FORMAL OPINION
TOPIC: Firm Names; Letterhead.
DIGEST: Partners of one law firm may form a second law firm bearing the same name in another jurisdiction. A lawyer may be "of counsel" to one law firm while an active name partner in another law firm. A law partnership may retain in its firm name the name of a partner who has retired from the partnership but remains "of counsel" while actively practicing in a firm having the same partners in another jurisdiction.
CODE: DRs 2-102(B), 2-102(D).
1. May the partners of a New York law firm form a second firm bearing the same name in another jurisdiction?
2. May someone be "of counsel" to one firm while an active, name partner in another law firm?
3. May a law partnership retain in its firm name the name of a partner who has retired from the partnership but remains of counsel while actively practicing in a firm having the same partners in another jurisdiction?
The law firm of A B & C (NY) is a New York partnership whose firm name consists of the names of three of its partners. One of these name partners, "Partner C," resides in Washington, D.C. Partner C, motivated by tax considerations, is considering "retiring" from the partnership of A B & C (NY), becoming "of counsel" to the firm, and becoming a partner in a newly-formed partnership in Washington, D.C. consisting of Partner C and all of the partners of A B & C (NY) and called "A B & C (DC)".
It is not per se improper for attorneys to be members of two partnerships, in two jurisdictions, with overlapping memberships. N.Y. City 82-33; N.Y. State 231 (1972); ABA Inf. 1253 (1972). Here, in particular, there is no reason why the partners of the New York firm cannot also be partners of the D.C. firm at the same time. Similarly, it is possible, although not usual, for a lawyer to satisfy the requirements to serve as both a partner in one firm and "of counsel" to another. See N.Y. City 81-54 ("Only in unusual circumstances may a lawyer properly be designated as a partner in one law firm and 'of counsel' to another"); see generally N.Y. City 1995-8; ABA 90-357 (lawyer must have "close, regular, personal relationship" with a firm to be "of counsel" to it); Philadelphia 89-19 (lawyer who is a partner in one law firm also may be either a partner in or "of counsel" to another law firm). This situation appears to present the type of "unusual circumstances" in which such a double designation would be permissible. It is likely that Partner C's "continuing" relationship with A B & C (NY) will be significantly more than merely nominal, since A B & C (NY) and A B & C (DC) are likely to be closely affiliated. If that is true, then Partner C could qualify as "of counsel" to the New York firm while serving as a partner in A B & C (DC).
Under DR 2-102(B), a lawyer may not practice under a firm name that is misleading about the identity of the lawyers practicing under such name. The partners of A B & C (NY) may form a second law firm in another jurisdiction bearing the same name, and Partner C's name may be kept in the New York firm's name, only if those arrangements are not intended to mislead the public and do not have that effect. N.Y. City 82-33; N.Y. City 81-104. Based on the facts as presented, the proposed naming will not be misleading.
The naming of A B & C (DC) appears clearly accurate, since all three named partners will be members of that firm. The New York firm should also be able to keep Partner C's name, even though he is no longer a partner of that firm, since Partner C will remain as counsel to A B & C (NY). There is no requirement that a firm's name consist exclusively of partners; a person's continuing "of counsel" relationship with the firm is enough. DR 2-102(B) ("A lawyer in private practice shall not practice under... a firm name containing names other than those of one or more of the lawyers in the firm."); Nassau County 92-4 (firm name may include name of withdrawing partner who continues to practice law provided withdrawing partner maintains "of counsel" relationship with firm).
In this respect, the proposed arrangement represents a departure from the usual principle that inclusion in a partnership's name of a partner who is not "deceased" and who, although nominally "retired," is still practicing law elsewhere, is likely to violate DR 2-102(B) because the firm title may be "misleading." N.Y. City 40 (1926) (including in firm name lawyer who continues practice of law in another firm is likely to mislead clients and others); Iowa 91-5 (law firm may continue to use the name of a partner who is retiring from the practice but will continue to visit the office on occasion and offer advice to remaining lawyers, provided that the retiring lawyer does not practice law in another firm or in sole practice). Here, so long as Partner C continues to maintain a close, regular, personal relationship with A B & C (NY), it is unlikely that the public or the firm's clients will be misled about the nature or scope of Partner C's position because A B & C (NY) continues to include him in its name. See Nassau County 91-22 (firm may continue use of retired partner's name so long as public not misled, and letterhead clearly sets forth professional status of lawyer).
If the firm and Partner C proceed as proposed, attention should be paid to the requirements of DR 2-102(D) concerning firm letterhead and other permissible listings. Separate letterheads for each firm would almost certainly be required to prevent the appearance of a partnership when none exists. See Nassau County 91-22.
In sum, A B & C (NY) may form a second law firm in Washington, D.C. bearing the same name, provided the arrangement is not intended to mislead the public and does not have that effect. By virtue of the close affiliation between A B & C (NY) and A B & C (DC), Partner C will likely have a "continuing" relationship with A B & C (NY), and therefore, may be "of counsel" to it while serving as an active, name partner in A B & C (DC). Based upon the likely close affiliation between the two partnerships and the continuing relationship between Partner C and the New York firm, A B & C (NY) may continue to use the name of Partner C in its firm name, even though he is actively practicing in A B & C (DC).
Subject to the caveats set forth above, we answer the questions presented in the affirmative.