Ohio Board Advisory Opinion Op 88-023

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE
41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804
OFFICE OF SECRETARY
OPINION 88-023
Issued August 12, 1988
[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio
Rules of Professional Conduct, eff. 2/1/2007.]
SYLLABUS: A lawyer designated “Of Counsel” by a another lawyer or law firm indicates a
continuing relationship among the lawyers, other than that of partner or associate. Under DR 2-
102(E) a lawyer who is engaged in another profession or business, may not so indicate on his
letterhead, office sign, or professional card, nor shall he identify himself as a lawyer in any
publication in connection with his other profession or business.
OPINION: We have before us your request for an advisory opinion regarding two distinct issues.
The first series of questions you have relate to the use of the “Of Counsel” designation. Your
second series of questions relate to DR 2-102(E) and a practicing lawyer engaged in another
profession or business.
Your specific questions regarding the “Of Counsel” designation are as follows.
1) What does this “Of Counsel” designation mean?
2) Is the attorney so designated “Of Counsel” considered an associate of the
firm?
3) If the firm is found to have committed malpractice, is the attorney
designated “Of Counsel” also liable?
4) If the “Of Counsel” attorney is found negligent, is the firm also liable?

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5) Would the “Of Counsel” attorney be considered an employee or partner, or
merely an independent contractor?
Under DR 2-102(A)(4) of the Code of Professional Responsibility, “(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 partner or associate.” The fundamental purpose behind the Code provisions
regarding a lawyer's professional status, is that “the particular relationship existing between or
among lawyers be stated clearly so that the public will not be misled.” ABA Committee on Ethics
and Professional Responsibility Formal Op. 330 (1972).
Turning to your first question, the “Of Counsel” designation indicates a continuing or semi-
permanent relationship with that lawyer or firm. Id. The “Of Counsel” lawyer’s relationship with
the lawyer or law firm must be a “close regular, personal relationship like, for example, the
relationship of a retired or semiretired former partner, who remains available to the firm for
consulting and advice...” Id.
In regard to your second question, an “Of Counsel” lawyer must not be an associate of the
firm he or she works for. See, DR 2-102(A)(4). Your third and fourth questions are legal questions
which we do not have the authority to answer. Gov. Bar R. V §2(b).
Pursuant to your fifth question an “Of Counsel” lawyer is a “member or component part of
that law office, but his status is not that of a partner or an employee (nor that of controlling member
of a professional legal corporation).” ABA Committee on Ethics and Professional Responsibility,
Formal Op. 330 (1972). The “Of Counsel” lawyer is compensated as a sui generis member of a law
office and should not be considered an outside consultant of the law office. Id. Moreover, it would
be misleading to use “Of Counsel” where the relationship only involves an individual case. Id.
Your second set of questions begin with a legal question, regarding the constitutionality of
DR 2-102(E). Again, we do not address legal questions. Gov. Bar R. V §2(b). The Ohio Supreme
Court has exclusive authority over modifying the Code of Professional Responsibility. See, Ohio
Const. art. IV, §5(B). Therefore, we suggest that you contact the Court regarding any proposed
changes in the Code.

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Your questions regarding dual practice relate to you being both a lawyer and a C.P.A.
Specifically you ask whether you can operate both practices out of the same office, use the same
phone number, same secretary, same office sign, same files, and bill for both services together.
Disciplinary Rule 2-101(E) specifically states that, “[a] lawyer who is engaged both in the
practice of law and another profession or business shall not so indicate on his letterhead, office
sign, or professional card, nor shall he identify himself as a lawyer in any publication in connection
with his other profession or business. According to this rule therefore, any advertisement
(including a letterhead) by a lawyer for a non-legal service wherein he is identified as a lawyer
would be improper and in violation of DR 2-102(E).” ABA Committee on Ethics and Professional
Responsibility, Informal. Op. 1316 (1975).
However, “[t]here is little ethical difficulty with the operation of an unrelated occupation
from the same location as a lawyer's law office so long as the lawyer complies with DR 2-102(E).”
ABA Committee on Ethics and Professional Responsibility, Formal Op. 328 (1971). The ABA
also held in Opinion 328 that,
[i]f the second occupation is so law-related that the work of the lawyer in such
occupation will involve, inseparably, the practice of law, the lawyer is
considered to be engaged in the practice of law while conducting that
occupation. Accordingly, he is held to the standards of the bar while
conducting that occupation from his law office. With this qualification, the
lawyer may carry on a law-related occupation, such as that of a C.P.A., from
the same office. Id.
Disciplinary Rule 2-102(E) was adopted at a time when other Disciplinary Rules and the
predominant sentiment within the legal profession made it impermissible for lawyers to advertise.
ABA Committee on Ethics and Professional Responsibility Informal Op. 1422 (1978). Now that
the restrictions on lawyers advertising have been substantially reduced, we agree with the ABA
when they state that DR

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2-102(E) is “plainly inconsistent with the tenor of DR 2-101 as amended.” Id. Under DR 2-101 a
lawyer is now permitted to engage in many forms of advertising provided the advertising does not
contain a false, fraudulent, misleading, or deceptive statement or claim. But for DR 2-102(E), a
lawyer’s advertising could ethically include that he or she is engaged in another profession or
business if that is in fact the case.
As a result of this apparent inconsistency, in February of 1980, the ABA eliminated DR 2-
102(E) from it's Model Code of Professional Responsibility. ABA Committee on Ethics and
Professional Responsibility Informal Op. 1497 (1983). In that opinion, the ABA held that a
lawyer/physician may practice law and medicine from the same office and that the deletion of DR
2-102(E) from the Code was intended to permit a dual listing. Id.
Therefore, it is our position that DR 2-102(E) is arguably inconsistent with the other
Disciplinary Rules relating to advertising and should be deleted from Ohio's Code of Professional
Responsibility.
At this time however, under DR 2-102(E) a lawyer is not permitted to indicate on his
letterhead, office sign or professional card that he is engaged in another profession or business.
Furthermore, a lawyer shall not identify himself as a lawyer in any publication in connection with
his other profession or business.
This is an informal, non-binding advisory opinion based upon the facts as presented
and limited to questions arising under the Code of Professional Responsibility.
James W. Mason, Esq.
Secretary, Board of
Commissioners