Opinion 2005-13
(August 2005)

The inquirer is a firm located in Pennsylvania. The firm is considering adding an attorney who is coming out of retirement to its roster. The attorney’s name currently appears in another firm’s name and on its letterhead, although the letterhead indicates that the attorney is retired. The former firm no longer handles the attorney’s area of expertise. The inquirer wishes to avoid any “semblance of conflict of interest or impropriety” and specifically requests guidance pursuant to Rule 7.5 of the Pennsylvania Rules of Professional Conduct (the “Rules”).

An attorney can be “of counsel” to more than one firm, provided there is disclosure on the letterhead so as to avoid confusion. Therefore, both firms may simply list the attorney as “of counsel” on their respective letterhead with the appropriate disclosure. However, this does not resolve the situation where the attorney the inquirer wishes to add to its roster will be an associate or a partner. In addition, it does not address the former firm’s continued use of the attorney’s name in its firm name.

Rule 7.5 deals with firm names and letterheads. The Rule provides that a firm may use a deceased or retired member’s name in its firm name but does not address whether more than one firm may use an attorney’s name concurrently. The Rule also fails to address a situation where a retired attorney comes out of retirement to work for another firm. Subsection (a), however, does state that a firm name, letterhead or other professional designation may not violate Rule 7.1, which deals with communications concerning a lawyer’s services.

Rule 7.1 provides that a lawyer shall not make “a false or misleading communication about the lawyer or the lawyer’s services.” The Comments to Rule 7.1 say that it governs all communications about a lawyer’s services, including advertising. The Comments also provide that “[t]ruthful statements that are misleading are also prohibited” and that “a truthful statement is misleading if it omits a fact necessary to make the lawyer’s communication considered as a whole not materially misleading.” The issue of whether a communication is misleading must be looked at from the point of view of the consumer.

Firm letterhead is a “communication” covered by Rule 7.1 because it is an advertisement that contains information about a lawyer’s services. Having the name of the attorney coming out of retirement appear on the inquirer’s letterhead and on the former firm’s letterhead creates a “misleading communication” under Rule 7.1 if the former firm continues to reference that attorney as “retired.” This is true because although the attorney may be retired from that firm, he or she is no longer retired from the practice of law. In addition, having the former firm simply remove the language indicating retirement does not resolve the matter because it would create the impression that the attorney is still working for that firm, which is not the case. Similarly, a misleading communication would exist where the attorney’s name appears in the name of the former firm after the attorney begins practicing for the inquirer’s firm because under Rule 7.5, such use is only appropriate where an attorney is deceased or retired.

To avoid violating the Rules, the attorney coming out of retirement should request that his former firm stop using his name and that it be removed from that firm’s letterhead.