Link to original WordPerfect Document
97 N.J.L.J. 457
June 20, 1974
ADVISORY COMMITTEE ON PROFESSIONAL ETHICS
Appointed by the New Jersey Supreme Court
P.A. - Withdrawing Partner
"Of Counsel"- "Patent Attorney"
Attorney A formed a professional corporation with attorney B
(a patent attorney). B has been offered a salaried position as
house counsel to a corporation, but the terns of his employment
would permit him to conduct a private practice. The several
questions posed by the inquirer may be consolidated. It appears
that B would be available for consultation to A, but that any
private practice B might otherwise conduct would be from his
corporate office or from his home. We are asked under these
1. May the professional corporation continue to use
the name "A and B, P.A., a Professional
2. May the professional corporation continue to use the
same name, but designate B as being "of counsel"?
3. If the name must be changed and limited to A's name,
may B's name appear on the office sign and
stationery as being "of counsel"?
At the outset, it must be noted that New Jersey Court Rule
1:21-1(A)(a)(2) requires professional corporations to comply with
and be subject to all the rules governing the practice of law by
attorneys. Accordingly, the applicable Disciplinary Rules must be
observed, the act of incorporation notwithstanding.
The pertinent part of DR 2-102(B) provides:
A lawyer in private practice shall not
practice under a trade name, a name that is
milling as to the identity of the lawyer or
lawyers practicing under such name, or a firm
name continuing names other than those of one
or more of the lawyers in the firm.
New Jersey Supreme Court Advisory Committee on Professional
Ethics, Opinion 105, 90 N.J.L.J. 53 (1967), states that a firm may
not use a partnership name when in fact no partnership exists. The
essence of the opinion is that attorneys may not hold themselves
out as partners when the work of the attorneys is not done in the
partnership form. The facts showed each attorney designated the
other "of counsel" and in certain matters retained income
separately, and individually paid his own overhead expenses. This
included practicing from different offices. However, on "jointly
handled matters" there was to be a division of the fees.
None of the facts presented in this inquiry serve to
distinguish it from the facts in Opinion 105, supra. The
partnership will no longer exist and under the circumstances it
would be a misrepresentation to indicate otherwise to the public.
A collateral question arises concerning the firm name. R.
1:21-lA(c) states that: "The corporate name of the professional
corporation shall contain only the full or last names of one or
more of its shareholders,... ."
The only exceptions to this rule and DR 2-102(B) are with
respect to deceased or retired members of the firm Opinion 198 of
the New Jersey Supreme Court's Advisory Committee on Professional
Ethics, 94 N.J.L.J. 209 (1971), interprets "retired" to exclude
those members of the bar who continue to practice law in New
Jersey. It is apparent that "retired" means exactly what it says -
a cessation of the active practice of law. Thus, if a member of a
professional corporation continues to practice law outside the
firm, the professional corporation may no longer use his name.
The third issue presented concerns the retention of the
attorney who is leaving the firm as "of counsel," and using his
name with his patent specialty designation on A's letterhead and
A.B.A. Comm. on Professional Ethics, Informal Opinion 678
(1963) states in part that:
It is the impression of this Committee that the term
"of counsel,"shown on a firm's letterhead or shingle, is
customarily used to indicate a former partner who is on
a retirement or semi-retirement basis, or one who has
retired from another partnership or the general private
practice or from some public position, who remains or
becomes available to the firm for consultation and
advice, either generally or in a particular field.
DR 2-102(A)(4) states in part that:
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
As to the problem of the shingle, DR 2-102(A)(3) permits:
A sign on or near the door or on the window of the
office or on the grounds in front of the building
in which the office is located and in the building
directory identifying the law.
In Drinker, Legal Ethics 138 (1953), it is stated that the
propriety of a sign is subject to the test of whether:
... the sign is intended and calculated to enable persons
looking for lawyer, already selected, to find him, or to
attract the attention of persons who might be looking for
a lawyer, although not for him.
DR 2-102(A)(3) is subject to 2-105(1) which allows a lawyer
admitted to practice before the United States Patent Office to use
the designation Patent Attorney or Patent Lawyer.
This Committee is reluctant to sanction measures which may be
misleading to the public or which might border upon unethical
advertising. While DR 2-102(A)(4) does permit the use of the term
"of counsel" on the letterhead when an attorney has a continuing
relationship with the law firm, the relationship here seems too
tenuous. A.B.A. Comm. on Professional Ethics, Informal Opinion 678
(1963) notes that the term "of counsel" is customarily used to
indicate a former partner who is on a retirement or semi-retirement
basis, or one who has retired from another partnership or the
general private practice or from some public position, and remains
remains or becomes available to the firm for consultation and
advice, either generally or in a particular field. In this
instance, attorney B has not retired from private practice or
public employment. In addition, it is clear that the vast majority
of his legal activities beyond his duties as house counsel to the
corporation will be accomplished through his own private practice
rather than through A's practice. It is questionable whether his
availability for consultation is materially different from his
availability to other private attorneys who seek his expertise as
a patent attorney.
In view of the foregoing, the Committee concludes that it
would be improper upon these facts for the letterhead of A to
indicate to the withdrawing partner is "of counsel" and that he is
a "patent attorney."
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