I’ll cut to the chase: as I see it, when an attorney is “of counsel” to a firm, conflicts are imputed between the attorney and lawyers in the firm. Here’s why I see it that way.
As we know from my intro to “of counsel,” a lawyer so designated must have a “close, regular, and personal relationship” with the firm. Mutual referrals do not an “of counsel” relationship make. Nor does being brought in for a single case or the occasional consultation.
Next, from this post, we know that given the “close, regular and personal” nature of the “of counsel” relationship, the “of counsel” lawyer will be considered part of the firm for compensation purposes. In other words, the fee sharing rule doesn’t apply.
A final reason that I see it as I see is that others smarter than I have stated that that’s how they see it. That is, the ABA’s Standing Committee on Ethics and Professional Responsibility and the Illinois State Bar Association have opined that if lawyers are considered to be in the same firm for fee sharing purposes, then the same goes for conflicts. The ABA opinion is here, while the Illinois opinion is here. As the ISBA stated:
- ” If the lawyers are considered to be in the same law firm for purposes of
the division of legal fees, it follows that the lawyers should be viewed as being in the same law firm for the purposes of any conflicts of interest, particularly given the close, personal nature of the ‘of counsel’ relationship. Accordingly, the disqualification of one from representation due to a conflict of interest must be imputed to the other.” (emphasis added).
The last sentence makes a critically important point.
Vermont imputes most conflicts to all other lawyers in the firm. That is, but for a few exceptions, we do not recognize “the wall.” It’s Rule 1.10, and here’s what it says:
- “While lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing alone would be prohibited from doing so by Rule 1.7 or 1.9, unless the prohibition is based on a personal interest of the prohibited lawyer and does not present a significant risk of materially limiting the representation of the client by the remaining lawyers in the firm.”
Or, in language I use when I want to be understood:
- “The rule is this: if one lawyer can’t take the case because of a conflict with a current or former client, none of the other lawyers in the firm can take it either.”
An aside:, don’t get hung up on the “while lawyers are associated in a firm” bit. The ABA & Illinois opinions says that “of counsel” counts.
So, the upshot: Lawyer is “of counsel” to Firm. Firm wants to represent Client. However, the conflicts rules would prohibit Lawyer from representing Client, and the conflict isn’t a “personal” conflict. Lawyer’s conflict is imputed to all lawyers in Firm.
I hear you now: “but Mike, that isn’t fair. She’s only ‘of counsel’, we never even really hear from her or see her. We’ll wall her off.”
Be careful what you let me hear.
First of all, if you never even really hear from her or see her, then it’s likely misleading to call her “of counsel.” Second, fair or not, Vermont doesn’t recognize the wall in this scenario. The conflict is imputed to all other lawyers in the firm.
To sum up my posts on the “of counsel” relationship:
- All the rules apply.
- If the relationship isn’t “close, personal, and regular” it’s likely misleading to call the lawyer “of counsel.”
- For the purposes of fee division and conflicts, “of counsel” will be considered part of the firm.
I’m not sure this is a burning issue in Vermont. Still, a lesson to be drawn might be this: carefully consider these issues before doling out the “of counsel” designation. It’s not a title to be bestowed willy nilly.