skip navigation
search

End-of-life notice: American Legal Ethics Library

As of March 1, 2013, the Legal Information Institute is no longer maintaining the information in the American Legal Ethics Library. It is no longer possible for us to maintain it at a level of completeness and accuracy given its staffing needs. It is very possible that we will revive it at a future time. At this point, it is in need of a complete technological renovation and reworking of the "correspondent firm" model which successfully sustained it for many years.

Many people have contributed time and effort to the project over the years, and we would like to thank them. In particular, Roger Cramton and Peter Martin not only conceived ALEL but gave much of their own labor to it. We are also grateful to Brad Wendel for his editorial contributions, to Brian Toohey and all at Jones Day for their efforts, and to all of our correspondents and contributors. Thank you.

We regret any inconvenience.

Some portions of the collection may already be severely out of date, so please be cautious in your use of this material.


Ohio Legal Ethics Narrative

VII INFORMATION ABOUT LEGAL SERVICES

7.5 RULE 7.5 FIRM NAMES AND LETTERHEADS

7.5:100 Comparative Analysis of Ohio Rule

7.5:101 Model Rule Comparison

While Ohio Rule 7.5(c) and (d) are identical to the comparable sections of the Model Rule, divisions (a) and (b) are different -- division (a) significantly so.

After the first sentence, which is identical to the Model Rule, division (a) basically restates former OH DR 2-102(B). Division (a) deletes all of the second (and last) sentence of MR 7.5(a) and in lieu thereof inserts the following:

A lawyer in private practice shall not practice under a trade name, a name that is misleading as to the identity of the lawyer or lawyers practicing under the name, or a firm name containing names other than those of one or more of the lawyers in the firm, except that the name of a professional corporation or association, legal clinic, limited liability company, or registered partnership shall contain symbols indicating the nature of the organization as required by Gov. Bar R. III. If otherwise lawful, a firm may use as, or continue to include in, its name the name or names of one or more deceased or retired members of the firm or of a predecessor firm in a continuing line of succession.

Division (b) differs from the Model Rule in the following respects: instead of the Model Rule language "may use the same name or other professional designation in each jurisdiction, but identification of the lawyers in an office of the firm" following "in more than one jurisdiction", Ohio uses the following language: "that lists attorneys associated with the firm." At the end of the division, instead of "not licensed to practice in the jurisdiction where the office is located, Ohio's language is "not licensed to practice in Ohio."

7.5:102 Ohio Code Comparison

The following section of the Ohio Code of Professional Responsibility is listed in the Correlation Table (Appendix A to the Rules) as related to Ohio Rule 7.5: DR 2-102.

7.5:200 Firm Names and Trade Names

  • Primary Ohio References: Ohio Rule 7.5(a); Gov Bar R III; ORC 1701.05(A)(1), 1705.05(A), 1775.62(A)
  • Background References: ABA Model Rule 7.5(a)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.45-2.49, 2.52
  • Commentary: ABA/BNA § 81:3001; Wolfram § 14.2.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.45-2.49, 2.52 (1996).

Scope of the provision: Often the first introduction a prospective client has with a law firm is through the law firm's name. If lawyers were allowed the freedom of a retail business in choosing a firm name, the fear is that the name chosen might be misleading or crassly commercial. To avoid this, Ohio Rule 7.5(a) substantially limits the firm name that lawyers in private practice may use.

It is important to recognize that this provision applies only to lawyers engaged in private legal practice. (The second sentence of Rule 7.5(a) expressly so states; the context of the remainder of division (a) strongly supports such a reading.) For example, a lawyer who markets litigation-support services and legal research and writing directly to other attorneys is not engaged in the practice of law, and thus is not bound by the Rule's restrictions. Bd. of Comm'rs on Grievances & Discipline Op. 88-018, 1988 Ohio Griev. Discip. LEXIS 1 (Aug. 12, 1988) (decided under former OH DR 2-102(B)). In contrast, all lawyers who are involved in private legal practice must comply with the limitations set forth in Rule 7.5(a). These limitations are discussed in the following paragraphs.

The restrictions apply only to firm names, not to a law firm's domain name in its world-wide-web address. Ohio Rule 7.5 cmt. [1] ("A lawyer or law firm may also be designated by a distinctive website address or comparable professional designation."). Accord, under the Code, Bd. of Comm'rs on Grievances & Discipline Op. 99-4, 1999 Ohio Griev. Discip. LEXIS 4 (June 4, 1999). To the extent a law firm offers legal advice through the web, its on-line service must be advertised by the firm name rather than a trade name. Bd. of Comm'rs on Grievances & Discipline Op. 99-9, 1999 Ohio Griev. Discip. LEXIS 10 (Dec. 2, 1999). As to use of trade names, see immediately below.

Trade names: Unlike MR 7.5(a), which permits use of trade names, with limitations, Ohio Rule 7.5(a) prohibits a lawyer in private practice from practicing under a trade name. See, e.g., under the former OHCPR, Cincinnati Bar Ass'n v. Heisler, 113 Ohio St.3d 447, 2007 Ohio 2338, 866 N.E.2d 490 (respondent violated OH DR 2-102(B) by operating under trade names "Mid-South Estate Planning" and "Senior Estate Planning Services"). Such regulation has been found to pass constitutional muster. See Medina County Bar Ass'n v. Grieselhuber, 78 Ohio St.3d 373, 678 N.E.2d 535 (1997) (upholding constitutionality of restriction on lawyer use of trade names under former OHCPR). Cf.  In re R.M.J., 455 U.S. 191 (1982) (recognizing that prohibition on use of trade names has been upheld, at least in some settings). But see Michel v. Bare, 230 F. Supp.2d 1147 (D. Nev. 2002) (holding Nevada rule prohibiting law firms [other than non-profit legal services organizations] from using trade names violated First Amendment commercial speech rights; case has no subsequent history). Comment [1] to Ohio Rule 7.5 observes that "any firm name including the name of a deceased partner is, strictly speaking, a trade name [but] [t]he use of such names to designate law firms has proven a useful means of identification." Ohio Rule 7.5 cmt.[1].

Several ethics opinions under the OHCPR applied this restriction on trade names. For example, it was opined to be improper to practice under a name such as "Debt Relief Clinic." Bd. of Comm'rs on Grievances & Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991) (use of name would violate OH DR 2-102(B) as both trade name and misleading name). Using the name "Corporate Legal Services of 'X'" would violate this provision as well. Toledo Bar Ass'n, Op. 91-16 (July 26, 1991).

A firm apparently can practice under a name using terms that reflect the structure of the practice without violating this provision. Bd. of Comm'rs on Grievances & Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991) (approving use of the name "X and Associates"). Accord Bd. of Comm'rs on Grievances & Discipline Op. 95-1, 1995 Ohio Griev. Discip. LEXIS 13 (Feb. 3, 1995) ("and Associates" may be used if attorney employs other attorneys, but not otherwise). The Board relied in part on Opinion 95-1 in putting its stamp of approval on a lawyer's use of "The X Law Group" as its name, when "X" was the lawyer's surname and the lawyer employed two lawyers as associates. Bd. of Comm'rs on Grievances & Discipline Op. 2006-2, 2006 Ohio Griev. Discip. LEXIS 2 (Feb. 10, 2006) (also opining that "Group" or "Law Group" should not be used in law-firm name to refer to paralegals or other nonattorney personnel, office-sharing attorneys, or "of counsel" attorneys.

Further, the Rule expressly requires that "the name of a professional corporation or association, legal clinic, limited liability company, or registered partnership shall contain symbols indicating the nature of the organization as required by Gov. Bar R. III." Gov Bar R III 2 in turn provides, in part:

The name of a legal professional association, corporation, legal clinic, limited liability company, or registered partnership shall comply with Rule 7.5 of the Ohio Rules of Professional Conduct. The name of a legal professional association or legal clinic shall end with the legend, "Co., LPA" or shall have immediately below it, in legible form, the words "A Legal Professional Association." The name of a corporation, limited liability company, or registered partnership shall include a descriptive designation as required under sections 1701.05(A), 1705.05(A), or 1775.62, respectively, of the Revised Code.

A corporation must include the designation "company," "co.," "corporation," "corp.," "incorporated," or "inc." ORC 1701.05(A)(1). A limited liability company must include the designation "limited liability company," "LLC," or "L.L.C.," "limited," "ltd.," or "ltd". ORC 1705.05(A). A limited liability partnership must include the designation "registered partnership having limited liability" or "limited liability partnership," or the abbreviation "P.L.L.," "PLL", "L.L.P.," or "LLP" as the last words or letters of its name. ORC 1775.62(A).

While a law firm cannot practice under a trade name, it apparently may use something similar to a trade name in its advertising along with its firm name. For example, the Board approved the use by a law firm, offering a 900 telephone service to provide legal advice to callers, of a descriptive name for the service, as long as the descriptive name was followed by the words "a service of X Firm." Bd. of Comm'rs on Grievances & Discipline Op. 93-1, 1993 Ohio Griev. Discip. LEXIS 11 (Feb. 12, 1993) (approving the use in advertising of "Employment Information Line, a service of X firm"). Similarly, the Toledo Bar Association indicated that a law firm might advertise a portion of its firm as the "Technology Law Group" as long as care was taken to make sure that prospective clients do not confuse this with the firm name. Toledo Bar Ass'n Op. 90-5 (Feb. 21, 1990). Caution must be exercised, however. Use of the trade name "Body Injury Legal Centers," accompanied by the misleading words "Pierre A. Grieselhuber and Affiliates" (he was a sole practitioner), violated both OH DR 2-101(A)(1) and 2-102(B).  Medina County Bar Ass'n v. Grieselhuber, 78 Ohio St.3d 373, 678 N.E.2d 535 (1997).

Lawyers' names: Instead of proceeding under a trade name, lawyers must use a firm name that contains the names of one or more of the lawyers in the firm. Ohio Rule 7.5(a). Such lawyers need not be licensed to practice in Ohio, provided the jurisdictional limitations are enumerated in the firm letterhead and other permissible listings. Bd. of Comm'rs on Grievances & Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991). See section 7.5:300.

Limitations arise with respect to the use of the names of lawyers not presently affiliated with the firm. Rule 7.5(a) provides that a firm name cannot contain the names of lawyers who are not currently lawyers in the firm, except the names of "deceased or retired members of the firm or of a predecessor firm in a continuing line of succession." See, under the identical OHCPR language, Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000) (respondent violated OH DR 2-102(B) by practicing under firm name containing name of lawyer not his partner or member of same firm, but with whom he merely shared office space). As noted in Comment [1], "it is misleading to use the name of a lawyer not associated with the firm or a predecessor of the firm or the name of a nonlawyer." Ohio Rule 7.5 cmt. [1]. Cf. Bd. of Comm'rs on Grievances & Discipline Op. 87-048, 1987 Ohio Griev. Discip. LEXIS 3 (Dec. 18, 1987) (where son starts practice at location where his father used to practice before assuming judgeship, son may not use father's name since they never practiced together).

In drawing these distinctions, the Rule attempts to achieve a balance. On the one hand, the presence of an individual name in the firm name suggests that that lawyer works at the firm and will be involved in the representation directly or indirectly. Allowing the use of names of those not affiliated with the firm thus would be misleading. On the other hand, a firm builds up a going-concern reputation based upon its name. If a name change were required every time a lawyer included in the firm name died or retired, that would create unnecessary confusion for the public.

While the Rule does not itself define the phrase "retired members of the firm" whose names may be used in the firm name, several ethics opinions address the matter. The names of lawyers who were in the firm name, but subsequently took retired registration status, can be used. Bd. of Comm'rs on Grievances & Discipline Op. 91-18, 1991 Ohio Griev. Discip. LEXIS 11 (Aug. 16, 1991). If, however, the retired partner becomes "of counsel" to the firm, her name as "of counsel" can be retained in the firm name only if she remains on active registration status, because "of counsel" denotes that the lawyer is authorized to practice law. Bd. of Comm'rs on Grievances & Discipline Op. 2008-1, 2008 Ohio Griev. Discip. LEXIS 1 (Feb. 8, 2008). In contrast, continued use of the name of a lawyer who withdraws from the firm but continues to practice law outside the firm would be improper. Ohio State Bar Ass'n Informal Op. 95-1 (Feb. 21, 1995). See also Toledo Bar Ass'n Op. 90-17 (n.d.) (even when that lawyer dies, name cannot then be used by those with whom he was formerly affiliated because there was not continuing line of succession). Using the name of a lawyer who has taken inactive registration status would also be improper. Bd. of Comm'rs on Grievances & Discipline Op. 96-3, 1996 Ohio Griev. Discip. LEXIS 6 (Apr. 12, 1996) (modifying Opinion 91-18 to the extent it allowed the continued use of a lawyer's name in the firm name where the lawyer had taken inactive registration status).

Former Gov Bar R III 2(A) had been interpreted to preclude inclusion of a nonshareholder's name in the name of a law firm practicing as a professional corporation.  Cleveland Bar Ass'n v. Bosco, 67 Ohio St.3d 459, 619 N.E.2d 1023 (1993); Bd. of Comm'rs on Grievances & Discipline Op. 88-016, 1988 Ohio Griev. Discip. LEXIS 21 (June 17, 1988). The operative language of this Governing Bar Rule was eliminated in 1995, but neither the Bosco case nor the Board's ethics opinion has been overruled or withdrawn. (The present status of Opinion 88-016 is listed as "CPR Opinion.")

Misleading names: As a catch-all, Rule 7.5(a) prohibits use of "a name that is misleading as to the identity of the lawyer or lawyers practicing under the name." See, under the former OHCPR, e.g., Akron Bar Ass'n v. Amourgis, 113 Ohio St.3d 32, 2007 Ohio 974, 862 N.E.2d 501 (use of "Phillips Edwards McCormick, P.C." violated DR 2-102(B); "[t]here is no person currently or formerly involved with the law firm with the name Phillip or Edwards or McCormick," id. at para. 5); Medina County Bar Ass'n v. Baker, 102 Ohio St.3d 260, 2004 Ohio 2548, 809 N.E.2d 659 (use of "Baker & Baker, Attorneys at Law" by sole practitioner violated OH DR 2-102(B)); Office of Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002 Ohio 7088, 781 N.E.2d 212 (same); Bd. of Comm'rs on Grievances & Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991) (use of name "Debt Relief Clinic" would violate OH DR 2-102(B) as both trade name and misleading name). But continued use in the firm name of one's maiden name, after it has been legally changed upon marriage, is not "misleading" within the meaning of the disciplinary rule. Ohio State Bar Ass'n Informal Op. 97-7 (Dec. 31, 1997).

Under this standard, it is also impermissible to use the phrase "and Associates" in the firm name of one who is in solo practice.  Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 754 N.E.2d 219 (2001) (use in letterhead). The phrase implies that the lawyer is involved in an employment relationship with other attorneys and cannot be used to describe office-sharing or co-counsel arrangements with other attorneys, or to denote that the lawyer has nonlawyer support personnel in his employ. Bd. of Comm'rs on Grievances & Discipline Op. 95-1, 1995 Ohio Griev. Discip. LEXIS 13 (Feb. 3, 1995). To do so is misleading.

Legal clinics: Among the permitted structural forms in which lawyers practice law is the legal clinic organized "for the purpose of providing standardized and multiple legal services." Ohio Rule 7.5 cmt. [4]. Comment [4] places specific limitations on the name a legal clinic may use, although many of the restrictions mirror those applicable to lawyers practicing in other arrangements. The name of the legal clinic must include the names of one or more of the active lawyers in the organization. Id. The name of any active lawyer in a clinic may be retained in the legal clinic's name after the lawyer's death, retirement, or inactivity because of age or disability. Id. The clinic's name may also include the phrase "legal clinic" or words of similar import. Id. See Bd. of Comm'rs on Grievances & Discipline Op. 89-27, 1989 Ohio Griev. Discip. LEXIS 33 (Aug. 19, 1989) (approving use of the phrase "legal center" by a legal clinic). See generally Bates v. Ariz. State Bar, 433 U.S. 350, 381 (1977) (overturning state's prohibition against lawyer's using the phrase "legal clinic" to describe a practice "geared to provide standardized and multiple services"). The use of a trade name, or a name including geographical or other type of identification or description, is prohibited. Ohio Rule 7.5 cmt. [4]. See Op. 89-27, 1989 Ohio Griev. Discip. LEXIS 33 (finding "Austintown Legal Center" to violate this standard). In addition, "the name must otherwise conform to other provisions of the [OHRPC] and The Supreme Court Rules for the Government of the Bar of Ohio." Ohio Rule 7.5 cmt. [4]. Finally, the clinic cannot be owned by, or profits or losses shared with, nonlawyers or lawyers not actively engaged in the practice of law in the organization. Id.

Query whether these naming restrictions have (or ought to have) any application to legal clinics operated by law schools throughout the state. Arguably not, given that the limitations set forth in the comment are directed to "legal clinic[s] operated by one or more lawyers."

7.5:300 Law Firms with Offices in More Than One Jurisdiction

  • Primary Ohio References: Ohio Rule 7.5(b)
  • Background References: ABA Model Rule 7.5(b)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.43, 2.50
  • Commentary: ABA/BNA § 81:3005, Wolfram § 15.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.43, 2.50 (1996).

Multijurisdictional firm name: Under the OHCPR, to the extent an Ohio law firm operated in more than one state, Ohio expressly permited the firm to use the same name as that used in other jurisdictions, even if the named lawyers were not admitted to practice in Ohio. Former OH DR 2-102(D). Such a rule helps the public by accurately stating office affiliations across states. Cf. Bd. of Comm'rs on Grievances and Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991) (firm name may contain name of partner not licensed in Ohio); Ohio State Bar Ass'n Op. 98-1 (May 21, 1998) (following Opinion 91-4).

While this language for some reason was not carried forward into Ohio Rule 7.5(b), and even though MR 7.5(b) does expressly so state, it is inconceivable that this is not still the law under the Ohio Rules. As is stated in the Ohio Code Comparison to Rule 7.5, the Rule is comparable to DR 2-102, "[w]ith the exception of DR 2-102(E) and (F)." There is no mention of 2-102(D) or of any intent to alter its meaning. Perhaps the single-name concept was thought to be implicit in the language of Rules 7.5(a) and (b) themselves ("A lawyer shall not use . . . . a firm name containing names other than those of one or more of the lawyers in the firm or one or more deceased or retired members of the firm or a predecessor firm in a continuing line of succession" and "[a] law firm with offices in more than one jurisdiction that lists attorneys associated with the firm shall indicate the jurisdictional limitations on those not licensed to practice in Ohio.)." From this language, it would appear that if the firm does not list individual attorneys, the operative rule would be that stated in Rule 7.5(a). In any event, there is no explanation of the change that we could find. The deletion was made in the draft of April 2005, reflecting action taken at the Task Force meeting of March 10-11, 2005. Unfortunately, the meeting minutes shed no light on why this change was made.

Multijurisdictional firm listings: Many firms are comprised of lawyers licensed to practice in different jurisdictions. As a result, it may be difficult to ascertain exactly where the lawyer retained is licensed to practice. Laypersons might erroneously assume that each lawyer is authorized to practice wherever the firm has an office. Rule 7.5(b) allows lawyers to practice in such multistate firms, but seeks to protect the public by requiring that a firm that lists attorneys in the firm (such as on its letterhead) "shall" indicate the jurisdictional limitations on all lawyers not licensed to practice in Ohio. See also Bd. of Comm'rs on Grievances & Discipline Op. 99-7, 1999 Ohio Griev. Discip. LEXIS 8 (Dec. 2, 1999) (confirming that the OHCPR and Governing Bar Rules contemplate Ohio and non-Ohio lawyers joining in various forms of professional association, but suggesting that state corporation law be looked to for possible limitations on the practice); Bd. of Comm'rs on Grievances & Discipline Op. 91-4, 1991 Ohio Griev. Discip. LEXIS 26 (Feb. 8, 1991) (applying this principle in situation where named partner in firm is not licensed in Ohio, but other lawyers are); Ohio State Bar Ass'n Op. 98-1 (May 21, 1998) (following Board Opinion 91-4).

Solo practitioners and jurisdictional limits: The OHCPR was silent as to any requirement of a solo practioner to indicate jurisdictional limits on the letterhead. Nevertheless, former OH DR 2-102(A)(4) was invoked to sanction an Ohio lawyer who opened an office in Washington, D.C. and failed to indicate on his D.C. office letterhead that he was licensed to practice only in Ohio and in a federal district court in Maryland.  Office of Disciplinary Counsel v. Mbakpuo, 73 Ohio St.3d 292, 652 N.E.2d 976 (1995). While Rule 7.5 similarly does not address the issue expressly, there would seem to be little doubt that such practice or comparable listing on other materials is misleading and thus would be violative of the first sentence of 7.5(a).

Letterhead of federal practitioners not licensed, but residing, in Ohio: An attorney who is not licensed to practice law in Ohio, but who resides here and appears in federal court, should specify in his letterhead those federal courts to which he is admitted and include a disclaimer as to admission in Ohio. Bd. of Comm'rs on Grievances & Discipline Op. 91-6, 1991 Ohio Griev. Discip. LEXIS 24 (Apr. 12, 1991). See section 5.5:520 (discussing unauthorized-practice-of-law implications of failure to do so).

7.5:400 Use of the Name of a Public Official

  • Primary Ohio References: Ohio Rule 7.5(c)
  • Background References: ABA Model Rule 7.5(c)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.41, 2.48
  • Commentary: ABA/BNS § 81:3005, Wolfram § 14.2.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.41, 2.48 (1996).

Firm names: Rule 7.5(c) addresses the effect that a lawyer's moving to public life should have on the name of the firm with which the lawyer was associated. The Rule provides:

The name of a lawyer holding a public office shall not be used in the name of a law firm . . . during any substantial period in which the lawyer is not actively and regularly practicing law with the firm.

See Bd. of Comm'rs on Grievances & Discipline Op. 87-048, 1987 Ohio Griev. Discip. LEXIS 3 (Dec. 18, 1987) (applying the similar standard under former OH DR 2-102(B)).

The concern of the Rule is two-fold. One is that the public will be misled into thinking they can secure the assistance of the lawyer in question, who, by virtue of public office, is no longer available to handle private matters. Second, the continued presence of the lawyer's name in the name of the firm might suggest that the firm can exercise some special influence with the lawyer in his or her new position. Such a suggestion is improper and should be avoided. See also Ohio Rule 8.4(e) (providing that a lawyer should not "state or imply an ability to influence improperly a government agency or official"), discussed at section 8.4:600. Under the OHCPR, to the extent that a lawyer was permitted by law to remain in private practice with the firm while carrying out his or her public duties, these restrictions did not apply. See former OH EC 2-11. Rule 7.5 does not speak directly to this issue, but since the Rule applies only to a period in which the lawyer "is not actively and regularly practicing in the firm," it would seem to exempt those who remain in active practice while serving in a public office.

Unlike former DR 2-102(B), which both obligated the lawyer/public official not to permit such a misuse of his or her name, and prohibited any firm member from in fact misusing it, Rule 7.5(c) is directed solely to the firm and/or its lawyers ("shall not be used").

Professional Announcements: Likewise, the name of a firm lawyer who has taken public office cannot be used in communications on the firm's behalf during any substantial period in which the lawyer is not actively and regularly practicing law as a member of the firm. Rule 7.5(c). The Rule would not bar a former judge (or other public official) returning to private practice from including a factual statement about his or her former position on professional announcement cards. Accord, under the OHCPR, Bd. of Comm'rs on Grievances & Discipline Op. 93-8, 1993 Ohio Griev. Discip. LEXIS 4 (Oct. 15, 1993), discussed below.

Letterhead: Given the prohibition in the Rule against use of the name of a lawyer holding public office "in communications on [the law firm's] behalf" during any substantial period when the lawyer is not practicing with the firm, it is reasonably clear that such a lawyer's name cannot be used in the firm's letterhead. Rule 7.5(c).

In Opinion 93-8, the Board opined that a former judge returning to private practice could not include statements about his former position or use titles, such as "Judge," on his letterhead or business card, but could do so in professional announcement cards or law directory listings. Bd. of Comm'rs on Grievances & Discipline Op. 93-8, 1993 Ohio Griev. Discip. LEXIS 4 (Oct. 15, 1993). The distinction was based on the likely effect of the communication on its intended audience. Letterhead and business cards are directed toward the public, who might be misled into thinking the judge can use the prestige of past office to secure client success or to gain improper influence. In contrast, professional announcement cards and directory listings are generally directed to others within the profession, who are unlikely to be misled by the information. It is unclear whether these restrictions continue under the Rules. If so, the argument would likely be that such usage creates unjustified expectations and thus could be considered misleading, thereby running afoul of the first sentence of Rule 7.5(a).

7.5:500 Misleading Designation as Partnership, etc.

  • Primary Ohio References: Ohio Rule 7.5(d)
  • Background References: ABA Model Rule 7.5(d)
  • Ohio Commentary: Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.43-2.44, 2.51
  • Commentary: ABA/BNA § 81:3008, ALI-LGL § 58, Wolfram § 14.2.4

The material in this section is, in part, excerpted and adapted from Arthur F. Greenbaum, Lawyer's Guide to the Ohio Code of Professional Responsibility §§ 2.43-2.44, 2.51 (1996).

Firm names and firm structure: Lawyers in private practice enter into numerous different arrangements with other lawyers, from office sharing to various forms of partnership and corporate status. Several different forms are permitted, but all lawyers involved must take care to be sure the public is not misled. The Rules also require that particular designations be used in the firm name if the lawyer's practice is organized as a corporation, partnership, professional association, legal clinic, limited liability company, or registered partnership. Ohio Rule 7.5(a) & Gov Bar R III 2. See section 7.5:200.

To the potential client, a lawyer who is practicing in a partnership or corporate form with others may be seen as having the greater resources of other lawyers to call upon in carrying out the representation. Clients also may feel that this gives them an added financial protection should the representation go awry. See generally Gov Bar R III 4 (requiring that lawyers organized as a legal professional association, corporation, legal clinic, limited liability company, or registered partnership maintain insurance or financial reserves, under a formula spelled out in the Rule, for any liability of the firm incurred in rendering legal services). See also section 5.1:500. Given that a reasonable client may choose a lawyer based in part on the fact that the lawyer is part of a partnership or other association of attorneys, the ethics rules allow a lawyer to state or imply that he or she practices in a partnership or other organization "only when that is the fact." Ohio Rule 7.5(d). The Court so held under the similar language of the OHCPR in Cincinnati Bar Ass'n v. Stidham, 87 Ohio St.3d 455, 721 N.E.2d 977 (2000) (violation of OH DR 2-102(C) where respondent practiced under firm name containing name of lawyer who was not and never had been his partner; they merely shared office space). Accord Columbus Bar Ass'n v. Smith, 97 Ohio St.3d 497, 2002 Ohio 6728, 780 N.E.2d 584; see Office of Disciplinary Counsel v. Watson, 98 Ohio St.3d 181, 2002 Ohio 7088, 781 N.E.2d 212 (solo practitioner maintained his practice under name of "Watson and Watson").

Comment [2] underscores that lawyers who are merely sharing office space cannot use a designation such as "'Smith and Jones,' for that title suggests that they are practicing together as a firm." Moreover, "[t]he use of a disclaimer such as 'not a partnership' or 'an association of sole practitioners' does not render the name or designation permissible." Ohio Rule 7.5 cmt. [2].

Applying the comparable OHCPR standard, an express misrepresentation on the letterhead -- that the lawyer was associated with others with whom he was not -- clearly violated former OH DR 2-102(C).  Disciplinary Counsel v. Conese, 102 Ohio St.3d 439, 2004 Ohio 3888, 812 N.E.2d 944; Office of Disciplinary Counsel v. Furth, 93 Ohio St.3d 173, 734 N.E.2d 219 (2001); Office of Disciplinary Counsel v. Mbakpuo, 73 Ohio St.3d 292, 652 N.E.2d 976 (1995). (While under indefinite suspension imposed by the 1995 decision, Mbakpuo again engaged in the unauthorized practice of law and again violated former DR 2-102(C), by using letterhead falsely holding himself out as a member of a firm that did not exist. This time around, Mbakpuo was disbarred.  Office of Disciplinary Counsel v. Mbakpuo, 98 Ohio St.3d 177, 2002 Ohio 7087, 781 N.E.2d 208.) It also was improper to employ a common firm name that connoted a formal relationship when there was no such relationship. Bd. of Comm'rs on Grievances & Discipline Op. 95-1, 1995 Ohio Griev. Discip. LEXIS 13 (Feb. 3, 1995) (improper for lawyer in solo practice to use firm name such as "X and Associates, L.P.A." where lawyers involved merely shared office space or served as co-counsel, but were not otherwise associated). Similarly, if a partnership dissolved, but the lawyers remained in an office-sharing relationship, they could not continue to practice under the old firm name, as that would imply a continuing partnership. Bd. of Comm'rs on Grievances & Discipline Op. 88-019, 1988 Ohio Griev. Discip. LEXIS 2 (Aug. 12, 1988).

Note, however, the Ohio State Bar Association opinion that group advertising was permissible by lawyers in different firms as long as care was taken to assure that the public was not misled as to the separate nature of the practices involved. Ohio State Bar Ass'n Informal Op. 88-1 (May 4, 1988).

Beyond disciplinary concerns, improper practices in this area could subject lawyers to liability for the conduct of others with whom they appear to be, but are not, affiliated, under various theories of apparent agency or agency by estoppel. See Estate of Holmes v. Ludeman, No. L-00-1294, 2001 Ohio App. LEXIS 4501 (Ohio App. Lucas Oct. 5, 2001) (issues of fact existed with respect to whether lawyer defendants were conducting business as partnership in fact or partnership by estoppel; summary judgment for attorneys reversed). Cf. Trimble-Weber v. Weber, 119 Ohio App.3d 402, 695 N.E.2d 344 (Geauga 1997) (recognizing the possibility that agency by estoppel could arise from an of-counsel relationship, but finding it inapplicable on the facts). See generally the nonlawyer cases of Shaffer v. Maier, 68 Ohio St.3d 416, 627 N.E.2d 986 (1994) (apparent agency), and Clark v. Southview Hosp. & Family Health Ctr., 68 Ohio St.3d 435, 628 N.E.2d 46 (1994) (agency by estoppel).

Letterhead: Even if the firm name does not misdescribe the organizational affiliations of attorneys, letterhead practices of those attorneys may mislead the public, and, if they do, those practices are improper under division (d). For example, it was opined under the Code that lawyers who shared office space could not use a common letterhead, as that implied partnership or other association when that was not the case. Bd. of Comm'rs on Grievances & Discipline Op. 89-36, 1989 Ohio Griev. Discip. LEXIS 6 (Dec. 15, 1989). The problem cannot be cured by disclaimer. Id. (rejecting disclaimers as potentially misleading to laypersons in this context); Toledo Bar Ass'n Op. 91-7 (Mar. 14, 1991). Accord, as to disclaimers, Rule 7.5 cmt. [2], discussed above. An overview of letterhead naming issues may be found in Kathryn A. Thompson, Naming Rights and Wrongs, ABAJ, Dec. 2004, at 28.

Letterhead - Lawyers on retired or inactive registration status: Under the OHCPR, a law firm could list on its letterhead attorneys who had taken retired registration status, as long as the letterhead designated them as retired, and they had been on the letterhead prior to taking retired registration status. Bd. of Comm'rs on Grievances & Discipline Op. 91-18, 1991 Ohio Griev. Discip. LEXIS 11 (Aug. 16, 1991). In contrast, lawyers taking inactive registration status could not be listed on the letterhead. Id. While this issue is not expressly addressed by Rule 7.5, it is in the present version of Gov Bar R VI, which states that both inactive status and retired status lawyers may be listed on the firm letterhead if (1) the name had been included prior to the lawyer's change from active status, (2) the lawyer was not under suspension, and (3) the letterhead denotes that the lawyer in question is "inactive" or "retired." Gov Bar R VI 2(C) (inactive); Gov Bar R VI 6(D) (retired).

Letterhead - Of-counsel designation: Some lawyers are affiliated with a firm in a relationship other than as a partner or associate. In accordance with Rule 7.5 cmt. [3], such lawyers may be designated "Of Counsel" if "the lawyer has a continuing relationship with a lawyer or law firm." Note that, unlike the prior disciplinary rule, Comment [3] does not limit the use of such designation to letterhead.

In February 2008, the Board of Commissioners issued a comprehensive opinion dealing with "of counsel" issues under the Rules of Professional Conduct. See Bd. of Comm'rs on Grievances & Discipline Op. 2008-1, 2008 Ohio Griev. Discip. LEXIS 1 (Feb. 8, 2008). This opinion confirms and carries forward all of the prior opinions by the Board under the Code dealing with "of counsel" issues, particularly the comprehensive Opinion 2004-11, as discussed below. On the letterhead issue, it restates the view of Opinion 2004-11 that use of the name of an out-of-state lawyer as "of counsel" on an Ohio firm's letterhead should include the listed lawyer's jurisdictional limitation. Opinion 2008-1, together with Rule 7.5 cmt. [3], should be the starting point for anyone having questions relating to "of counsel" matters under the Ohio Rules.

Traditionally, the four principal uses of the term "of counsel" included part-time practitioners who had changed from full-time status, retired partners who remained available for consultation and advice, probationary partners-to-be (typically joining the firm as a lateral hire), and those who had a permanent status at a firm but were not partners of it. Bd. of Comm'rs on Grievances & Discipline Op. 91-18, 1991 Ohio Griev. Discip. LEXIS 11 (Aug. 16, 1991) (relying for guidance on ABA Formal Op. 90-357 (May 10, 1990)). Under the Rule 7.5 cmt. [3] definition, it would appear that all of these categories would qualify, although the "continuing relationship" may not be quite as strong in the case of the retired partner available for consultation. Note, however, as discussed this section infra, the retired "of counsel" partner cannot have taken retired registration status under the Bar rules; one who does so is not authorized to practice law and may not hold oneself out as authorized to do so. See Gov Bar R VI 3(A). A lawyer may maintain "of counsel" status with multiple firms, if the lawyer maintains sufficient contacts with each and structures the relationship to avoid conflict-of-interest problems. Bd. of Comm'rs on Grievances and Discipline Op. 97-2, 1997 Ohio Griev. Discip. LEXIS 7 (Apr. 11, 1997).

The last word on "of counsel" issues under the Code was Bd. of Comm'rs on Grievances & Discipline Op. 2004-11, 2004 Ohio Griev. Discip. LEXIS 9 (Oct. 8, 2004). Disagreeing with the reading of its Opinion 89-35 by the OSBA, the Board stated that an "of counsel" attorney does not function or practice as a member of the firm to which he or she serves as "of counsel" but rather is "unique from a member in a law firm." Op. 2004-11, at *5 (except on conflict-of-interest disqualification issues, id.). Thus, a lawyer, whether "a sole practitioner, office sharing attorney, member, associate, partner, shareholder, or an attorney employee of a multi-lawyer law practice[,] may serve as 'of counsel' to another lawyer or law firm." Id. at *3. This includes an Ohio lawyer who is "of counsel" to a firm in another state, an out-of-state lawyer who is "of counsel" to an Ohio firm, and, of course, an Ohio lawyer as "of counsel" to another Ohio firm, provided that in each instance the disciplinary rules of the state in which the lawyer is "of counsel" are adhered to. See id. at *1 (syllabus). Opinion 2004-11 explores a number of other "of counsel" issues in detail, including the various meanings of the term, and should be consulted on any issue concerning "of counsel" status. It is generally consistent with the other "of counsel" Board opinions cited in the paragraphs immediately preceding and following this one.

To qualify for "of counsel" status under the Board's reading in Opinion 2004-11 (which seems more stringent than that in Rule 7.5 cmt. [3] but which was nevertheless reconfirmed in Opinion 2008-1 under the Rules), the attorney must have "a close, regular, and personal relationship" with the firm, other than that of partner or associate. 2004 Ohio Griev. Discip. LEXIS 9, at *2. Using an "of counsel" designation for a lawyer who did not maintain such a relationship was false and misleading advertising in violation of former OH DR 2-101(A)(1). Bd. of Comm'rs on Grievances & Discipline Op. 97-2, 1997 Ohio Griev. Discip. LEXIS 7 (Apr. 11, 1997). An attorney on inactive or retired registration status cannot be listed as "of counsel." Bd. of Comm'rs on Grievances & Discipline Op. 91-18, 1991 Ohio Griev. Discip. LEXIS 11 (Aug. 16, 1991); accord Gov Bar R VI 6(D) (attorney taking retired registration status cannot be listed on letterhead "as 'of counsel' or otherwise be represented as able to engage in the practice of law in Ohio"). Although VI 6(D) speaks of "a retired attorney," this must be read as a reference to a lawyer who has taken retired registration status. A lawyer who retires from a firm but maintains active registration status remains authorized to practice law despite his retirement. Nor is it appropriate to list a partner or an associate of the firm as "of counsel." Op. 91-18, 1991 Ohio Griev. Discip. LEXIS 11 (relying for guidance on ABA Formal Op. 90-357 (May 10, 1990)). It also may be inappropriate to list one law firm as "of counsel" to another. Toledo Bar Ass'n Op. 92-7 (May 10, 1992).

Letterhead - Senior Attorney designation: The Board has approved the use of the phrase "Senior Attorney" on the letterhead to designate an attorney who had practiced for a number of years and now is a salaried employee of a firm. Bd. of Comm'rs on Grievances & Discipline Op. 90-03, 1990 Ohio Griev. Discip. LEXIS 20 (Apr. 20, 1990) (allowing this use when law firm merged with retiring attorney and attorney would stay on as salaried employee).

Letterhead - Inclusion of nonlawyers: Under the OHCPR, a split of authority existed with respect to the propriety of listing nonlawyer employees on the law firm's letterhead. The Cleveland Bar Association approved the practice, as long as the nonlawyer employees were clearly identified as such. Cleveland Bar Ass'n Op. 89-1 (Aug. 25, 1989). The Board, however, rejected this position. Bd. of Comm'rs on Grievances & Discipline Op. 89-16, 1989 Ohio Griev. Discip. LEXIS 23, at *2 (June 16, 1989) (reaching this conclusion on finding that former OH DR 2-102(A)(4) was meant to provide "an exhaustive list" of what could be included on the letterhead, and it did not provide for inclusion of nonlawyers). See ABA, Annotated Model Rules of Professional Conduct 546-47 (6th ed. 2007) (commentary), which sides with the Cleveland Bar opinion in setting forth the view that listing nonlawyers on letterhead is permissible, if their nonlawyer status is clearly indicated. This seems consistent with the first sentence of Ohio Rule 7.5(a), which precludes using a designation on letterhead that is misleading under Rule 7.1. Including a nonlawyer whose nonlawyer status is clearly indicated is not misleading.

Lawyer's inclusion on client letterhead: Former OH DR 2-102(A)(4) also addressed when a lawyer or law firm could be listed on the stationery of a client. According to the disciplinary rule, a lawyer could be listed on a client's stationery as "General Counsel" or an equivalent designation, if the lawyer or firm "devotes a substantial amount of professional time in the representation of that client." The rule provided no guidance on how much time this should entail. See generally Toledo Bar Ass'n Op. 92-8 (n.d.) (finding, strangely, that even though firm provided all of business client's legal representation, where no firm member spent majority of his or her time on client's work, commitment was insufficient to justify listing as general counsel!).

Other conditions, not expressed in the rule, also could be applicable. Relying on a 1972 ABA informal opinion, the Board suggested that a lawyer's name could appear on a client's letterhead and the lawyer could sign letters on client stationery as client's counsel only if: (1) counsel did not suggest the listing, (2) the listing was clearly and primarily in the client's interest, and (3) the client did not exploit the listing for business or competitive purposes. Bd. of Comm'rs on Grievances & Discipline Op. 90-13, 1990 Ohio Griev. Discip. LEXIS 20 (Aug. 17, 1990). If these conditions were satisfied, listing as general counsel or under some equivalent designation was appropriate. Id. Use of the phrase "of counsel" was not an equivalent designation, however, since that title applies to a special affiliation with a law firm, not a client. Id. The lawyer also could sign correspondence under the client's letterhead, whether or not the lawyer was listed there, as long as the lawyer's professional status was clearly designated. Id.

Consistent with its exclusive focus on lawyers and law firms, Ohio Rule 7.5 does not speak to the client-letterhead issue at all. Whether these prior ethics cases and opinions on the subject will be recognized under the Rules remains to be seen.

Finally, on a related subject, if an out-of-state attorney not yet licensed in Ohio was hired to fill a general counsel position, the attorney could use the title only if its use was accompanied by a disclaimer that the lawyer was not licensed to practice in Ohio.  In re Stage, 81 Ohio St.3d 554, 692 N.E.2d 993 (1998) (disclaimer required in any written or oral communication where title used).