Of-counsel is a title given to an attorney who is has a relationship with a law firm, but is not an associate or partner at the law firm. An of-counsel may serve as an independent contractor to the firm or in some circumstances, may be an employee of a law firm. According to the American Bar Association, ABA Formal Opinion 90-357, the term “of counsel” is to describe “a close, regular, personal relationship.”
ABA Formal Formal Op. 90-357 describes an of counsel relationship as “‘a close, regular, personal relationship'” but excluding “that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term,” and associates, defined as “a junior non-partner lawyer, regularly employed by the firm.”
According to Formal Op. 90-357, there are four usual variants to the “of counsel” designation: (1) the “part-time practitioner, who practices law in association with a firm, but on basis different from that of the mainstream lawyers in the firm”; (2) a retired partner of the firm who is available for consultation; (3) a lawyer, usually a lateral hire, brought into the firm with the expectation that the lawyer will shortly become a partner; and (4) a lawyer who occupies a permanent senior position in the firm with no expectation of becoming a partner. These four examples underscore that “of counsel” should not be used to designate more casual relationships which depend on the occasional consultation; the co-counseling of a single case, even if it is of long duration; “a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms”; or a relationship based solely on making or accepting referrals.
Of-counsel relationships may also be governed by State Bar’s as well. Some State Bar’s have taken the position that the name of a lawyer who is of counsel to a firm should not appear in the name of the firm unless the lawyer who is of counsel is a retired name partner of the firm. For example, according to the Massachusetts Rules of Professional Conduct, including the name of a lawyer who is simply of counsel without the status of a prior named partner would be deceptive and misleading.
Before entering into an of-counsel relationship, make sure to learn about your State Bar’s requirements and prohibitions regarding the of-counsel relationship.