When a law firm partner is elected to Congress, can the firm keep that partner's name on its firm name and letterhead?

Plain-English summary

A partner in a law firm was elected to Congress, and the firm asked whether it could keep the departing partner's name on its letterhead. The Committee answered "Yes, if the Congressman or Congresswoman continues to actively and regularly practice law as a member of the firm." It rested on DR 2-102(B), which barred a lawyer who assumes a judicial, legislative, or public executive or administrative post from permitting his name to remain in the firm name or professional notices during any significant period in which he is not actively and regularly practicing law as a member of the firm, and on EC 2-12, which permits the name to remain only if the lawyer actively continues to practice as a member.

The opinion drew on ABA authority construing the same rule, including ABA Formal Opinion 318 (1967) (a partner elected or appointed to high office he intends to occupy only temporarily, who takes a leave of absence rather than severing the firm relationship, may keep his name in the firm name if proper precautions prevent misleading the public about his degree of participation) and ABA Informal Opinions 1134 (1969) and 1205 (1972) (a lawyer-legislator actively and regularly practicing may be listed as a partner or as "Counsel" if he in fact practices in and renders advice to clients of that firm). The Committee also reminded the firm to adhere to EC 8-8 (a lawyer-public officer should avoid activities conflicting with official duties), DR 9-101(C) and EC 9-4 (a lawyer must not state or imply an ability to improperly influence a tribunal, legislative body, or public official). It found these guidelines a sufficient answer to the question.

Currency note

This opinion was issued in 1984 under Kentucky's former Code of Professional Responsibility (in effect 1971 to 1990), before the Kentucky Bar Association's 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can a firm keep an elected official's name in the firm name and letterhead?

A: Under this opinion, only if that lawyer continues to actively and regularly practice law as a member of the firm; if not, DR 2-102(B) required removal of the name.

Q: Could the lawyer be listed as "Counsel" instead of partner?

A: The opinion, citing ABA Informal Opinions 1134 and 1205, recognized that a lawyer-legislator who actively and regularly practices and renders legal advice to the firm's clients could be listed as partner or as "Counsel" to the firm.

Q: What else did the opinion caution the firm about?

A: It pointed to DR 9-101(C) and EC 9-4, which bar a lawyer from stating or implying an ability to improperly influence a tribunal, legislative body, or public official.

Background and rules framework

The opinion applied the former Code's firm-name and holding-out provisions, DR 2-102(B) and EC 2-12, together with the public-office and appearance-of-impropriety provisions, EC 8-8, DR 9-101(C), and EC 9-4. The modern analogs are Model Rule 7.5 (firm names and letterheads, including the rule that a lawyer holding public office may keep his name in the firm name only during periods when he is actively and regularly practicing with the firm) and Model Rule 7.1 (no false or misleading communications about a lawyer's services). The analysis turned on whether the public would be misled about the lawyer's actual participation in the firm.

Citations and references

Rules of Professional Conduct:

• DR 2-102(B); EC 2-12; EC 8-8; DR 9-101(C); EC 9-4 (former Code)
• MR 7.5 (firm names and letterheads); MR 7.1 (communications about services)

Other opinions cited:

• ABA Formal Op. 318 (1967): retaining a partner's name during temporary high office
• ABA Informal Ops. 1134 (1969) and 1205 (1972): lawyer-legislator listed as partner or "Counsel"

See also

• KBA Ethics Op. E-319: Names on Firm Letterhead
• KBA Ethics Op. E-371: Alderman's Firm

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-298.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-298
Issued: November 1984

This opinion was decided under the Code of Professional Responsibility, which was
in effect from 1971 to 1990. Lawyers should consult the current version of the Rules
of Professional Conduct and Comments, SCR 3.130 (available at
http://www.kybar.org), especially Rules 7.01-7.50 and the Attorneys' Advertising
Commission Regulations, before relying on this opinion.

Question:

A partner in a law firm is elected to Congress. May the firm leave the departing
partner's name on the letterhead?

Answer:

Yes, if the Congressman or Congresswoman continues to actively and regularly
practice law as a member of the firm.

References:

Code of Professional Responsibility DR 2-102 and EC 2-12; ABA Formal Opinion
318 (1967); ABA Informal Opinions 1134 (1969) and 1205 (1972).
OPINION

We begin with the following provisions of the Code:
DR 2-102(B)… A lawyer who assumes a judicial, legislative, or
public executive or administrative post or office shall not permit his name to
remain in the name of a law firm or to be used in professional notices of the
firm during any significant period in which he is not actively and regularly
practicing law as a member of the firm, 109 and during such period other
members of the firm shall not use his name in the firm name or in
profession notices of the firm.
EC 2-12 A lawyer occupying a judicial, legislative, or public
executive or administrative position who has the right to practice law
concurrently may allow his name to remain in the name of the firm if he
actively continues to practice law as a member thereof. Otherwise, his name
should be removed from the firm name, and he should not be identified as a
past or present member of the firm; and he should not hold himself out as
being a practicing lawyer.
Footnote 109 to DR 2-102 cites a portion of ABA Opinion 318 (1967), to wit:
"Where a partner whose name appears in the name of a law firm is
elected or appointed to high local, state or federal office, which office he
intends to occupy only temporarily, at the end of which time he intends to
return to his position with the firm, and provided that he is not precluded by
holding such office from engaging in the practice of law and does not in fact
sever his relationship with the firm but only takes a leave of absence, and
provided that there is no local law, statute or custom to the contrary, his
name may be retained in the firm name during his term or terms of office,
but only if proper precautions are taken not to mislead the public as to his
degree of participation in the firm's affairs."
The Code was also construed in ABA Informal Opinion 1205 (1972), which provided:
It is the opinion of this Committee that in accordance with the above
Disciplinary Rule, it would be improper for you to continue to have your
name as part of your firm's name, unless you are actively and regularly
practicing law as a member of the firm. DR 2-102(B). However, you have
indicated that you have already removed your name from the firm name.
With reference to your firm continuing to list your name as a partner
on its letterhead and card, this Committee, in Informal Opinion 1134 (see
also Formal Opinion 318), ruled that if a lawyer who was a U. S. Senator
and listed as counsel to a firm was actively and regularly practicing law,
then the firm could use a letterhead showing that he is a lawyer and also
showing that he is "Counsel" to the firm, if in fact he practices in the offices
of that firm and renders legal advice to the clients of that firm.
The Committee is of the opinion that if you meet the requirements
as set forth in Informal Opinion 1134, your name could continue to be listed
as a partner on the firm's letterhead and card.
However, the Committee believes that you and your firm should
keep in mind and adhere to the following Ethical Considerations and
Disciplinary Rules.
EC 2-12. A lawyer occupying a judicial, legislative, or public
executive or administrative position who has the right to practice law
concurrently may allow his name to remain in the name of the firm if he
actively continues to practice law as a member thereof. Otherwise, his name
should be removed from the firm name, and he should not be identified as a
past or present member of the firm; and he should not hold himself out as
being a practicing lawyer.
EC 8-8. Lawyers often serve as legislators or as holders of other
public offices. This is highly desirable, as lawyers are uniquely qualified
to make significant contributions to the improvement of the legal system.
A lawyer who is a public officer, whether full or part-time, should not
engage in activities in which his personal or professional interests are or
foreseeably may be in conflict with his official duties.
DR 9-101. Avoiding Even the Appearance of Impropriety.
DR 9-101(C). A lawyer shall not state or imply that he is able to
influence improperly or upon irrelevant grounds any tribunal, legislative
body, or public official.
EC 9-4. Because the very essence of the legal system is to provide
procedures by which matters can be presented in an impartial manner so
that they may be decided solely upon the merits, any statement or
suggestion by a lawyer that he can or would attempt to circumvent those
procedures is detrimental to the legal system and tends to undermine public
confidence in it.
The members of the Ethics Committee find the above guidelines to be a sufficient answer
to the question posed.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the Kentucky
Bar Association under the provisions of Kentucky Supreme Court Rule 3.530 (or its predecessor
rule). The Rule provides that formal opinions are advisory only.