Formal Opinion 2005-06: Retired attorneys’ use of professional letterhead and special disclosure obligations to clients and prospective clients.

Topic: Retired attorneys’ use of professional letterhead and special disclosure obligations to clients and prospective clients.

Code Sections: DR 1-102, DR2-101, DR 2-102, DR 6-101, EC 6-1, and EC 6-2.

Question:

When an attorney who is retired from the practice of law nonetheless wishes to continue performing legal services (a) may that attorney use professional letterhead and (b) must that attorney make any special disclosures to clients and prospective clients?

Discussion:

Unlike in several other states, where retired attorneys are precluded from practicing law, in New York a retired attorney may continue to practice law, but that attorney may not charge a fee. (1) N.Y. Comp. Codes R. & Regs. tit. 22, § 118.1(g) (2003) provides, in part:

No [biennial registration] fee shall be required from an attorney who certifies that he or she has retired from the practice of law. For purposes of this section, the “practice of law” shall mean the giving of legal advice or counsel to, or providing legal representation for, a particular body or individual in a particular situation in either the public or private sector in the State of New York or elsewhere, it shall include the appearance as an attorney before any court or administrative agency. An attorney is “retired” from the practice of law when, other than the performance of legal services without compensation, he or she does not practice law in any respect and does not intend ever to engage in acts that constitute the practice of law.

In New York, attorneys who certify that they are retired from the practice of law are also exempt from continuing legal education (“CLE”) requirements. N.Y. C omp. Codes R. & Regs. tit. 22, § 1500.5(b)(4) (2005).

Under these rules, retired attorneys may still practice law, albeit without compensation, and they are exempt from the biennial fee and from CLE requirements. But the rules do not address whether retired attorneys (a) may use professional letterhead and (b) should disclose to clients and prospective clients that they are retired and what that status entails.

Retired Attorneys’ Use of Professional Letterhead

As a threshold matter, New York allows attorneys to use professional letterhead if doing so does not “violate any statute or court rule,” DR 2-102(A), and is not “false, deceptive, or misleading,” DR 2-101(A). See also Model Rules of Prof’l Conduct R.7.1 & 7.5 (2004) (prohibiting the use of letterhead that is false or misleading).

New York allows only those who are licensed and admitted to practice law to hold themselves out as “attorneys-at-law.” See N.Y. Judiciary Law § 478 (McKinney 2004). Thus, so long as a retired attorney remains licensed and admitted in New York, there is no statute or court rule prohibiting that retired attorney from using professional letterhead. Nor is it otherwise false, deceptive, or misleading for that retired attorney to use professional letterhead stating that he or she is an “attorney-at-law.”

Under the Code of Professional Responsibility, there is also no requirement that the attorney disclose on professional letterhead that he or she is retired. See DR 2-102(A)(4) ( “A letterhead of a law firm may also give the names of members and associates, and names and dates relating to deceased and retired members.”).

We therefore conclude that a retired attorney may use professional letterhead and may, but is not required to, disclose on that letterhead that he or she is retired.

Retired Attorneys’ Disclosure Obligations to Clients and Prospective Clients

We turn next to the question whether retired attorneys have any special disclosure obligations to clients and prospective clients.

DR 1-102(A)(4) provides, “A lawyer or law firm shall not: Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Thus, a retired attorney is prohibited from misleading a client or potential client about the retired attorney’s ability to charge a fee or satisfaction of CLE requirements.

Separately, DR 6-101(A) provides that an attorney must handle a matter competently and with adequate preparation: “A lawyer shall not: 1. Handle a legal matter which the lawyer believes or should know that he or she is not competent to handle, without associating with a lawyer who is competent to handle it” and “2. Handle a legal matter without preparation adequate in the circumstances.”(2)

There is no reason to believe that retired attorneys are less conscientious than other members of the Bar about conforming their conduct to the Code. Thus, there is no need for any special requirement that a retired attorney reflexively disclose to every client or prospective client that the retired attorney cannot charge a fee or is exempt from CLE requirements. Furthermore, with respect to CLE, DR 6-101(A) nonetheless applies with full force to retired attorneys, who must – regardless of any CLE exemption – handle the matters that they undertake competently and with adequate preparation. To that end, retired lawyers who practice would be well advised to maintain their skill and knowledge, whether through CLE programs, self-study, or otherwise.

Conclusion:

Attorneys who are retired from the practice of law (a) may use professional letterhead; (b) may, but are not required to, disclose on that letterhead that they are retired; and (c) are not obligated to specially disclose to clients or prospective clients that they (i) may not charge a fee or (ii) are exempt from the CLE requirements that are mandatory for all other New York attorneys.

1. See, e.g., UT Eth. Op. 00-02, 2000 WL 347377 (Utah St.Bar) (“In all jurisdictions surveyed by the Committee for purposes of this opinion, lawyers on inactive status are precluded from engaging in the practice of law”); OH Adv. Op. 92-4, 1992 WL 739414 (Ohio Bd.Com.Griev.Disp.) (“[A]n attorney granted ‘inactive’ or ‘retired’ registration status shall not be entitled to practice law in Ohio . . . The language of the current rule sweeps broadly with a restrictive intent . . . [A]ttorneys with ‘inactive’ or ‘retired’ registration status may not perform the duties [even] of a paralegal or student law clerk because of the express requirement of the Supreme Court of Ohio that these attorneys [also] may not ‘render any legal service for an attorney granted active status.’”); People v. Newman, 925 P.2d 783, 784 (Colo. 1996) (lawyer publicly censured for inter alia implying “that he was licensed to practice law in Colorado even though he was on inactive status”).

2. See also EC 6-1 (“The lawyer should strive to become and remain proficient in his or her practice and should accept employment only in matters which he or she is or intends to become competent to handle.”); EC 6-2 (“A lawyer is aided in attaining and maintaining competence by keeping abreast of current legal literature and developments, participating in continuing legal education programs, concentrating in particular areas of the law, and by utilizing other available means.”).