Counsel for Those Considering Entering into Of Counsel Relationships
By Mark Bassingthwaighte , Esq .
Of Counsel is one of those terms that has multiple meanings . This term has been used as an honorary designation for retired partners , as a special designation for firm attorneys who are neither a partner nor an associate , and as a way to describe part-time attorneys who have created an association with a firm . In recent years , however , more attorneys seem to want to use the term solely as a way to generate additional business . After all , the public presentation of close ties with another firm can be an effective marketing tool that will drive additional business to your firm , right ? Well perhaps , but there are risks that come into play and these risks should not be taken lightly .
What Is an Of Counsel Attorney ?
The Of Counsel designation , as envisioned by the authors of various ethics opinions , refers to something altogether different from a traditional attorney within a firm . These opinions generally define an Of Counsel attorney as an attorney who is not a partner , associate , shareholder , or member of a firm . They further state an attorney may only be designated Of Counsel to the firm if the attorney will have a close and continuing relationship with the firm . This means any attorney that works with your firm and has a significant degree of shared liability with your firm or managerial responsibilities to your firm and / or its staff should never be designated as Of Counsel . Related terms such as Special Counsel , Tax Counsel , Senior Counsel , and the like are understood to have the same meaning as Of Counsel , and thus , the requirement of a close and continuing relationship will apply there as well .
The requirement of a close and continuing relationship has been defined as providing for close , ongoing , regular , and frequent contact for the purpose of consultation and advice . Further , the Of Counsel attorney must be more than an advisor on only one case or just a forwarder or receiver of legal business . Attorneys can get into serious disciplinary trouble by designating someone who is merely a referral attorney as Of Counsel , because that is usually considered to be a misleading client communication in violation of the ethical rules . This is why the idea of creating Of Counsel relationships solely for marketing purposes falls flat .
Who Can Properly Be Designated Of Counsel ?
Evaluating the appropriateness of the designation in the light of what a disciplinary committee could perceive as misleading can help one avoid some of the common Of Counsel designation pitfalls . Remember , the average person will take the term at face value so come at the decision from the perspective of the average person ’ s expectations . If you are thinking about being listed on another firm ’ s letterhead as Of Counsel , only do so if you are able to be readily available and actually will provide counsel to that firm .
ALPS Risk Manager Mark Bassingthwaighte , Esq ., has conducted over 1,000 law firm risk management assessment visits , presented numerous continuing legal education seminars throughout the United States , and written extensively on risk management and technology . Check out Mark ’ s recent seminars to assist you with your solo practice by visiting our on-demand CLE library at alps . inreachce . com . Mark can be contacted at mbass @ alpsnet . com .
Examples of acceptable relationships for the Of Counsel designation have included , but are not limited to : 1 ) retired lawyers , 2 ) withdrawing partner or associate , 3 ) parttime practitioner , 4 ) permanent non-partner / non-associate , 5 ) partner on leave , and 6 ) probationary partner-to-be . Examples of unacceptable relationships for the Of Counsel designation have included , but are not limited to : 1 ) outside consultants , 2 ) suspended lawyers , 3 ) when the affiliation involves only a single case , 4 ) those who merely share office space and nothing more , and 5 ) public officials who are not engaged in active practice with their former firm .
Can a law firm be Of Counsel to another firm ? Can an attorney be Of Counsel to more than one firm ? Can an attorney be Of Counsel to an out-of-state firm ? While the answers to these questions can be yes , the reality is the answers to these questions , and a number of others , will differ depending upon the jurisdiction in which you practice . Given the numerous and varying state specific rules regarding this designation , I would recommend that prior to establishing any Of Counsel relationship you review any relevant ethics opinions and / or contact bar counsel in your jurisdiction .
What Are the Risks ?
There are a few generally applicable issues that take on special significance in an Of Counsel affiliation . In particular , imputed disqualification , vicarious liability , and insurance coverage disputes warrant special attention .
Imputed Disqualification - For conflict purposes , the Of Counsel affiliation means the affiliated firm and the Of Counsel attorney will often be treated as one entity . This does mean the conflicts the Of Counsel attorney brings to the table may prevent the affiliated firm from continuing to represent current or future clients . Likewise , the Of Counsel attorney has to be concerned about apparent or actual conflicts between his own clients and those of the affiliated firm . The imputed disqualification rule is a two-way street , and there is little that can be done to correct the problem once it has arisen . Conflict checks can be burdensome , and the potential cost in lost business if a conflict is
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