Under what circumstances may a lawyer who is not an associate or partner in a firm be listed on that law firm's letterhead as being "Of Counsel?"
"A lawyer may be designated 'Of Counsel' on a letterhead if he has a continuing
relationship with a lawyer or law firm other than as a partner or associate."
DR 2-102(A)(4). A cardinal principle of Legal Ethics is that information on a lawyer's letterhead must not be misleading. This is due to a lawyer's special responsibilities to the legal system and actual and prospective clients' right to know the identity of the attorneys with whom they are dealing. The relevant Disciplinary Rule implies that there must be a special relationship between a law firm and a lawyer it designates as "Of Counsel."
ABA Informal Opinion 770 requires that an attorney designated as "Of Counsel" have a close, regular, personal relationship with the law firm that lists him on its letterhead. This relationship may be by virtue of prior partnership of a retired firm member or a regular and frequent association such that the attorney who is "Of Counsel" has a significant and continuing relationship with the law firm. Similarly ABA Informal Opinion 1134 approved the use of the designation provided the attorney regularly and actively practiced law and that he actually rendered legal services to firm clients. ABA Formal Opinion 330 states that it is not possible for an attorney to truly have "Of Counsel" status with more than two different law firms.
Accordingly, the Professional Ethics Committee is of the opinion that "Of Counsel" should denote a regular, continuing and substantial relationship between a law firm and an attorney. An attorney's mere availability for consultation with firm members, or prior, sporadic association is not sufficient to fulfill this requirement. Further, an attorney may not be "Of Counsel" to more than two firms.