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Ethics Opinion #32
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Appropriate designation on letterheads,
signs, etc of a non-partner salaried employee attorney, who
will receive most of his compensation as a percentage of fees
generated from cases he has worked on.
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RICHMOND COUNTY BAR ASSOCIATION
COMMITTEE ON PROFESSIONAL ETHICS
OPINION # 32
October 28, 2002
The Committee is in receipt of an inquiry from a law firm planning to hire an attorney, but who will not be a partner. He will be a salaried employee, but most of his compensation from receipt of a percentage of the fees generated from his work and from new eases he brings into the firm.
The inquiry is: what is an appropriate designation for this individual on the firm s letterhead, signs, etc.
DR 2-102(a) (4) provides, inter alia, that a letterhead of a
law firm may indicate the names of members and associates and
that a lawyer maybe designated “Of Counsel” if there is a continuing
relationship with the lawyer, other than as a partner or
associate.
At one time, designations other than “Of Counsel” were disapproved by various bar associations when used to describe a “close continuing, regular, and personal relationship” (see, Association of the Bar of The City of New York, Committee on Professional Ethics, Op. #2000-
4). Thereafter, “associated” and “affiliated” became acceptable descriptions of such. relationships, in part due to the recognition by the Code of Professional Responsibility that lawyers are permitted to disseminate any communications so long as they are not false, deceptive, or misleading (DR 2-101(A)). For example, a law firm may include an unadmitted law school graduate on its letterhead, so long as he is identified as such (see, New York County Lawyers Association, Committee on Professional Ethics, Op. #683).
However, what has not changed in. the Code is the right to designate
such lawyers as “Of Counsel”, “Counsel” “Affiliated with”, etc.
but only if they are not partners or associates. An “associate”
is not defined in New York s Code of Professional Responsibility,
but that term has been interpreted by courts and various bar
ethics committees to mean a salaried lawyer-employee who is
not a partner of the firm (Association of the Bar of the City
of New York Committee on Professional Ethics, Op. #1996-8; see,
The Florida Bar v. Fetterman, 439 So. 2d 835 (Fla. 1983); Samuels
v. Montgomery, 793 S.W. 2d 337, 340 (Tex. Ct. App. 1990) (“To
be an ‘associate she would be on the payroll of a law firm as
an employee”); In re Sussman, 405 P. 2d 355, 356 (Or. 1965)
(“Principally Through custom, the word [associate] when used
on the letterheads of law firms has come to be regarded as describing
those who are employees of the firm”); ABA 90-357 (the status
ordinarily conveyed by the term “associate” is “a junior non-partner
lawyer, regularly employed by the firm”); Illinois 657 (1980)
(“an ‘Associate is widely understood to be a salaried employee
of a law firm who takes direction from the partners or members
of the firm”). The inquiry made it clear that the lawyer in
question would be a salaried employee.
The inquirer specifically asked if an “Of Counsel” designation would be proper on letterheads etc, and the answer, under current ethics opinions, would be in the negative. Alternatively, the inquirer asks if a separate heading of “Counsel” would be appropriate. Again,
the answer must be in the negative. “Counsel” or “General Counsel” connotes that that lawyer devotes a substantial amount of professional. time in the representation of a client. It is usually reserved for use on letterheads and business cards of the business corporation or entity employing the lawyer as such (see, DR 2-102(A) (4)).
Since the lawyer in question will be a salaried employee, his designation of his status as anything other than as an associate might be considered misleading. Ethical Consideration 2-13 provides:
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“In order to avoid
the possibility of misleading persons with whom a lawyer
deals, a lawyer should be scrupulous in the representation
of professional status. A lawyer should not hold himself
or herself out as being a partner or associate of a law
firm if not one in fact....”
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This does not preclude, however, a more descriptive way in which to identify the lawyer s associate status. “Senior associate”, or “Principal associate”, for example, would be appropriate.
Pursuant to Article VI, Section 19 of the R.C.B.A. By-Laws, please be advised that that the statements contained herein express the opinion of the Committee alone, and have not been passed upon by the Association.
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Wayne M. Ozzi
Chairman, Professional
Ethics Committee |
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