ISBA Issues Guidance on Using Non-practicing Attorneys’ Names Within the Firm’s Name

Recently, the ISBA issued an ethics opinion regarding law firm names, letterhead and the “Of Counsel” designation.  More specifically, the ISBA examined these topics in the context of non-practicing attorneys.  The ethics opinion examined the following fact scenario:

Two Illinois-licensed attorneys, Jane and John Smith, were the only partners in the law firm of Smith & Smith, LLP.  However, John recently changed careers and is no longer practicing law.  John maintains his law license and may return to practicing law with Smith & Smith, LLP in the future.  Since John’s career change, the firm’s letterhead still uses the name of Smith & Smith, LLP, and lists John as a partner with the firm.

In its analysis, the ISBA examined whether (1) the firm must change its name with John pursuing a non-legal career; (2) the firm must remove John from its letterhead; and (3) in the alternative, the firm may change John’s designation from partner to “Of Counsel” on the firm’s letterhead.

Illinois Rules of Professional Conduct 7.1 and 7.5 apply as follows:

7.1.  A lawyer shall not make a false or misleading communication about the lawyer or the lawyer’s services. A communication is false or misleading if it contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading.

7.5.  (a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.

. . .

(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.

Pursuant to 7.5(d), neither Jane nor John may hold themselves out as practicing in a partnership because John left the firm and discontinued the practice of law.  Additionally, Illinois case law does not support the existence of a partnership because John does not contribute to or share in the profits of the partnership.  See, e.g., Estate of Goldstein, 293 Ill.App.3d 700, 688 N.E.2d 684 (1st Dist. 1997), and Rizzo v. Rizzo, 3 Ill.2d 291, 120 N.E. 2d 546 (1954).  Therefore, the firms continuance as Smith & Smith, LLP would be contrary to Rules 7.1 and 7.5.

However, the use of “Smith & Smith” is not necessarily precluded even though Jane and John may not remain as partners.  The names of partners no longer with a firm may remain in certain circumstances where the public would not be misled by the name’s continued use.  These circumstances include the use of the names of (1) deceased partners where there has been a continued succession in the firm’s identity; and (2) retired partners where the firm takes steps to accurately publicize the retired partner’s status.  See Comment 1 to Ill. Sup. Ct. R. 7.5, and ISBA Opinion No. 03-02, respectively.  Neither of these circumstances are present here, and the continued use of “Smith & Smith” would be precluded.

Similarly, John’s inclusion on the letterhead would be precluded by Rules 7.1 and 7.5.  Its inclusion would be misleading because he is no longer practicing with the firm.

Finally, the opinion concluded that the firm could not change John’s designation from partner to “Of Counsel” on its letterhead.  Typically, “Of Counsel” is a professional designation used between a law firm and attorney to indicate a continuing relationship other than as an associate or partner.  See ISBA Opinion No. 16-04.  If the firm held John out as “Of Counsel”, it would be misleading and not permitted because there is no continuing relationship.

The ISBA’s opinion may be found here.