Of Counsel – an intro

I’m going to give you a choice.  Your mission, should you choose to accept it, is to answer ONE of the following two questions.

  1. Name the book whose opening line is: “A few miles south of Soledad, the Salinas River drops in close to the hill-side bank and runs deep and green.”
  2. Tell me the definition of “of counsel.”

My guess is that more of you might know “Of Mice and Men” than the answer to number 2.  Don’t worry.  You’re not alone.

In my experience, “of counsel” is one of those odd things that we know, but might struggle to explain to someone else.  And not only do we “know” it, the inquiries that I receive suggest that, at some level, lawyers understand that the “of counsel” relationship might pose its own peculiar set of ethical issues.  Indeed it does.

So, what rules apply to “of counsel?”  Regular readers know the answer to this:

ALL OF THEM!!!!

A lawyer working “of counsel” must be competent, diligent, and honest.  The lawyer must safeguard client property.  You get the point.

Now, what rules might be particularly thorny?  In my mind, there are 3 areas in which to be particularly careful:

  1.  Communications Concerning a Lawyer’s Services
  2. Fee Sharing
  3. Conflicts

I don’t want this discussion to ge too long or too technical.  So, I’m going to an employ a blogger’s trick and break this up into 3 posts.  Today’s will focus on the nature of the relationship and the rule on communications concerning a lawyer’s services.

So, what is “of counsel.”  I like the definitions provided by:

Each makes clear that the “of counsel” relationship is something different from what many of us might recall as a status provided to a lawyer who semi-retires after many years with a firm.  As the Illinois State Bar notes in Opinion 16-04:

  • “The ‘of counsel’ relationship has as its core characteristic a close, regular, and personal relationship that is more than a mere forwarder or receiver of legal business, more than an occassional consultant relationship, and more than a relationship for the purposes of one case.”

This is important.  Rule 7.1 prohibits a lawyer from making false or misleading communication’s about the lawyer’s services . Rule 7.5 prohibits a lawyer from using letterhead or other designation that violates Rule 7.1.  So, to list a lawyer as “of counsel” to a firm, the lawyer and firm must have:

  • “a close, regular and personal relationship that is more than a mere forwarder or receive of legal business, more than an occasional consultant relationship, and more than a relationship for the purposes of one case.”

In other words, absent that close, regular and personal relationship, it’s likely misleading to designate an attorney as “of counsel.”

ABA Opinion 90-357 identifies four situations in which “of counsel” is appropriate:

  1. A part-time practitioner who practices on a different basis than the firm’s partners, shareholders, and associates.
  2. A retired partner who no longer actively practices, but who remains available for consultation on firm matters.
  3. A lateral transfer who is hired with the expectation of becoming a partner in a short period of time.  That is, a lawyer who is usually too experienced to start anew as an associate.
  4. A lawyer who is neither associate nor partner, but who has some sort of “tenure,” although one who likely will never become a partner.

The same opinion identifies situations in which “of counsel” is not appropriate:

  • a relationship for one case;
  • a relationship where the lawyer is merely forwards clients to the firm, or receives clients forwarded by the firm;
  • a relationship that involves only occasional collaborative efforts between a lawyer and firm that otherwise do not have any interaction or involvement; and,
  • when the lawyer is an “oustide consultant.”

In closing, to comply with Rules 7.1 and 7.5, the “of counsel” relationship should be one in which lawyer and firm have a close, regular, and personal relationship.  As I’ll get into in the posts to follow, yes, a lawyer who is “of counsel” may ethically maintain his or her own practice independent of the firm.  However, that’s where issues such as fee sharing and conflicts can get thorny.

Maybe every lawyer in the whole damned world is now scared of the “of counsel” designation.  Don’t worry.  In the next few posts, you got me to look after you.

Stay tuned.

Of Mice and Men

 

 

 

 

 

4 thoughts on “Of Counsel – an intro

  1. Mike, you know we think you are wonderful, but I think it’s fair to say the ABA and state bar opinions raise more questions about the definition for “of counsel” than they answer and encourage the use of terms without sufficient meaning in the culture of ethics and law. Could is possibly be more helpful to say “of counsel” is a known person affiliated with a law firm more likely to be bound by the law of agency and respondeat superior than other parties? Keep up with the literature.

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  2. “some sort of “tenure”…this reminds me of what the Catholic church says about Protestants…”they are somehow, still Catholics.” The “somehow” is telling.
    Attorneys always have to obey ethical rules. An “of counsel” doesn’t have an ethically accountable relation to a firm until he does something. Seems like he’s an “agent in waiting” which status is really a term of art, not law….until he acts.

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