Firms benefit from having attorneys who act as of counsel for multiple reasons. One such benefit is allowing experienced lawyers who still need more business to become partners to continue practicing in their areas of expertise without worrying about conflicts of interest or vicarious liability issues.
However, not all arrangements qualify as of counsel relationships; to qualify, there must be an ongoing and close working relationship between lawyers.
Attorneys frequently utilize the term counsel to refer to their relationships with law firms. While not identical with partnerships or associates, counsel relationships provide attorneys a way of staying connected for various purposes, including:
For years, attorneys who wanted to remain associated with law firms would typically become “of counsel.” This practice often occurred among semi-retired partners, former judges, or government officials transitioning back into private practice.
Today’s use of “of counsel” has become more flexible since the release of ABA Formal Ethics Opinion 90-357, which replaced earlier approaches outlined in ABA Formal Ethics Opinion 330. It recognizes four categories of counsel relationships – part-time practitioners, retired partners, probationary partnerships, and senior attorneys. Furthermore, this new approach specifies that any “of counsel” designation must appear prominently on firm letterhead and have characteristics associated with an ongoing personal relationship.
Evaluating a relationship that involves counsel can be tricky. You must consider its impact on the overall law firm structure, ethics related to conflicts and fee-sharing arrangements, and vicarious liability coverage issues that could arise from such an arrangement.
On a broad level, of counsel attorneys are defined as non-partners of a law firm but still maintain close and ongoing personal ties to it. This could include lawyers who have not made partners, former partners retained on contract for specific projects, or part-time practitioners.
These attorneys must be available for regular consultation for the firm to consider them as counsel. Otherwise, it risks violating ethics rules governing disqualification and recusal issues and risk management concerns regarding imputing liability and insurance coverage issues.
Attorneys categorized as counsel are granted an elevated position within a firm. This designation can be given to semi-retired partners, former judges, government officials transitioning into private practice, and attorneys with specific expertise.
When designating attorneys as counsel, firms should consider any conflicts, fee sharing, vicarious liability concerns, and misleading titles that can apply if attorneys only work on single cases or simply forward or receive legal business. When assigning these roles, the American Bar Association cautions that firms must address potential conflicts of interest, fee-sharing issues, and vicarious liability concerns.
Beginning attorneys often spend several years before being promoted to associate and, ultimately, partner in their law firm. Some attorneys, however, find themselves either unable or unwilling to become partners; those unable or unwilling to do so often hire counsel to reap some of the advantages of being one without actually becoming one themselves. This category can also benefit attorneys transitioning back into private practice after leaving public sector work, individuals seeking work/life balance that partnership cannot provide, or those wanting to reduce the size of their law firm gradually.
Historically, lawyers listed as “of counsel” on a law firm letterhead were either semi-retired partners who wanted to retain their relationship with the firm or former judges and government officials transitioning back into private practice. Now, firms use “of counsel” as a catch-all term that covers an array of relationships not associated with associates or partners, such as part-time practitioners with unique practices areas or retired partners looking for additional work before officially becoming full partners – anything from part-time practitioners with particular practice areas to probationary partners hired solely with clients before becoming full partners formally named partners!
As ABA Formal Opinion 90-357 requires, any arrangements between firms and attorneys must comply with specific ethical requirements. Furthermore, such relationships should go beyond occasional consultations where lawyers share ideas. Instead, they should be genuine partnerships where lawyers work together continuously to deliver legal services to the firm’s clients. According to the American Bar Association’s recommended usage rules of “of counsel,” only close, regular, personal, and continuing relationships should use that title indefinitely.
In conclusion, the role of “Of Counsel” in law firms is a unique and flexible position that signifies a close but distinct relationship between the attorney and the firm. This designation allows experienced lawyers to contribute their expertise without committing to the traditional partnership track. Whether serving as a mentor, providing specialized knowledge, or assisting on specific cases, “Of Counsel” attorneys bring valuable insights to the firm.
Understanding the nuances of the “Of Counsel” designation sheds light on the evolving nature of legal practice. It offers a flexible career path for seasoned lawyers and enables law firms to tap into diverse skills. As the legal landscape continues to evolve, the role of “Of Counsel” remains a testament to the adaptability and inclusivity within modern law firms.