Can a law firm keep a name partner's name in its name after that partner leaves to become a corporation's in-house counsel?

Plain-English summary

A name partner is about to leave a firm to take an in-house corporate position, and the firm wants to keep his name in the firm name. The inquirer asks whether it can do so on three theories: that he is "retired," that he is on an open-ended leave of absence, or that he becomes of counsel while minimizing his firm participation. The committee answers no to all three and raises a conflicts question of its own.

Rule 7.5(b) bars a firm name containing names other than the firm's lawyers, except that a firm may keep the name of a deceased or retired member. Following N.Y. State 850 (2011), the committee holds that a lawyer still actively practicing as a corporation's general counsel has not "retired" from the practice of law, so the firm cannot keep the name on that basis. The leave-of-absence theory fails too: under N.Y. State 381 (1975), 346 (1974), and N.Y. County 735 (2006), a lawyer practicing elsewhere (and an in-house legal department is a "firm" under Rule 1.0(h)) who is not actively involved in supervising and managing the firm cannot have his name in the firm name. The of-counsel theory fails because, while a retired partner may take of counsel status and keep his name, a lawyer working full time as in-house counsel does not qualify as of counsel, which requires a close, regular, continuing relationship; the committee agrees with Rhode Island Op. 94-65 (1994) and Nebraska Op. 10-04 (2010) on this point.

The committee adds two notes. The firm may be able to list the predecessor firm name on letterhead and announcement cards under Rule 7.5(a)(2) and (4), but not use it as the ongoing firm name. And it raises imputation: if the partner remains "associated" with the firm under Rule 1.10(a) (the test being general access to client files and regular participation in client affairs), or is simultaneously associated with both the firm and the corporate legal department, the conflicts of each are generally shared and must enter both conflict-checking systems under Rule 1.10(e).

In practice

Under the New York rules as they stood at the time of the opinion, a firm cannot keep a departing name partner's name in the firm name once he leaves to practice as in-house counsel; the opinion holds he is neither "retired" nor a qualifying of-counsel lawyer, and an open-ended leave does not preserve the name. The opinion also holds that if such a lawyer stays associated with both the firm and the corporate legal department, conflicts are imputed in both directions and both must run conflict checks accordingly. The committee expresses no view on a partner who leaves briefly with an expectation of returning.

Common questions

Q: Is a partner who becomes in-house counsel "retired" for firm-name purposes?

A: No. The opinion holds, following N.Y. State 850, that a lawyer still actively practicing as a corporation's general counsel has not retired from the practice of law, so the firm cannot keep his name under Rule 7.5(b)'s retired-member exception.

Q: Can the firm keep the name by calling him "of counsel"?

A: No, not while he works full time as in-house counsel. The opinion holds an of-counsel relationship requires a close, regular, continuing relationship that a full-time in-house lawyer does not have with the firm.

Q: Do conflicts get shared between the firm and the corporate legal department?

A: They can. The opinion holds that if the lawyer is simultaneously associated with both under Rule 1.10(a), their conflicts are generally imputed to each other and both must account for the other's conflicts under Rule 1.10(e).

Background and rules framework

The opinion applies Rule 7.5(b) (firm names and the deceased/retired-member exception) and Rule 7.5(a) (letterhead and predecessor-firm listings), the "firm" definition in Rule 1.0(h) (including a corporate legal department), Rule 5.1 (supervisory responsibility as a qualitative test for inclusion in a firm name), and Rule 1.10(a) and (e) (imputation and conflict-checking). These correspond to Model Rules 7.5, 1.10, 5.1, and 1.7.

Citations and references

Rules of Professional Conduct:

• New York Rule 7.5(b), (a) (firm names; predecessor-firm listing); Model Rule 7.5
• New York Rule 1.10(a), (e) (imputation and conflict-checking systems); Model Rule 1.10
• New York Rule 5.1 (supervisory responsibility); Model Rule 5.1
• New York Rule 1.0(h) (a corporate legal department is a "firm")

Other opinions cited:

• N.Y. State 850 (2011): a general counsel is not "retired" from practice
• N.Y. State 381 (1975), 346 (1974), 793 (2006); N.Y. County 735 (2006)
• ABA Formal Op. 90-357 (1990); Rhode Island Op. 94-65 (1994); Nebraska Op. 10-04 (2010)

See also

• NY State Bar Op. 850: Law firm name and a former partner
• NY State Bar Op. 861: Name and ownership of a New York law office
• NY State Bar Op. 876: Conflicts when a lawyer is associated with two firms

Source

• Landing page: https://nysba.org/ethics-opinion-853/