Of counsel: What does that mean anyway?

Like the other members of our hardworking Illinois State Bar Association Senior Lawyers Section Council, I am sure I have come across the term “of counsel” many times in my career. Not really knowing the actual meaning of the term, I had an idea it identified some association with a law firm. It is an amorphous term; one that I did not know the correct definition of, at least by our state’s ethical standards. As a young lawyer, starting my own solo practice right out of law school, and looking at my stationery with just one lonely name on it, I thought about adding people on the right side of the stationery, identifying them as “of counsel.” I enlisted a number of lawyers, pals, lawyers for whom I tried cases, and lawyers that sent me business. Was that okay? Is there an actual, understandable definition of this term, of this status? If so, what is it? That’s the purpose of this article.

Over the years, attorneys like me, and I am certain many of my fellow senior counselors, have created of counsel relationships for various reasons, mostly to generate additional business. After all, the increased exposure coupled with the presentation of close ties with another firm can be an effective marketing tool.

What is an “Of Counsel” Attorney, Anyway?

The generally understood meaning of this term is a lawyer who is not a partner, associate, shareholder, or member of a firm, but who has some sort of a close and continuing relationship with the firm.

The common view of the relationship is someone who is providing close, ongoing, regular and frequent contact for the purpose of consultation and advice, perhaps acting as a trusted advisor or senior counselor.

An attempt was made to define the term by the American Bar Association in Formal Op. 330, issued in 1972, stating a lawyer was “of counsel” to a firm only when the relationship between the lawyer and the firm was “close, continuing, and personal” and when the relationship was not “that of a partner, associate, or outside counsel.” Pretty broad, yes?

According to the ABA opinion and successive informal opinions, a lawyer who was of counsel to a firm should have some regular daily contact with the firm; a law firm cannot be of counsel to another law firm; and a lawyer should not be of counsel to more than two firms. These restrictions proved impracticable when applied to common practice. As a result, the ABA revisited the definition of “of counsel” in 1990 in Formal Op. 90-357. Among other things, the requirement that contact be nearly on a daily basis, the advice that a law firm could not be “of counsel,” and the restrictions on the number of “of counsel” relationships that could simultaneously be maintained, were rejected.

Nevertheless, 90-357 reaffirmed that the “core characteristic” of “of counsel” was “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.” Lawyers identified as “tax counsel,” “antitrust counsel,” “special counsel” and the like are understood, de facto, to have an “of counsel” relationship to the firm, and the requirement of a “close, regular, personal relationship” applies to them as well, as do all the caveats and consequences discussed in this article.

According to Formal Op. 90-357, there are four types of of counsels:

(1) the “part-time practitioner, who practices law in association with a firm, but on a basis different from that of the mainstream lawyers in the firm;”

(2) a retired partner of the firm who provides institutional recollections of his or her experiences with the firm and 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 member, e.g., associate, 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; co-counseling in 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.

The name of a lawyer who is of counsel to a firm should not appear in the name of the firm (e.g., in its letterhead with partners and associates) unless the lawyer who is of counsel is a retired name partner of the firm. In all my years as a practicing attorney, I have never seen “of counsel” listed anywhere but on the right margin of a firm’s stationery, under the heading “of counsel.”

As my John Marshall Law School professor and later long-term Dean, Robert Gil Johnston, used to say: “but that begs the question”: what are the risks of serving as “of counsel” to a firm, if any?

There are a few risks that take on special significance in an “of counsel” relationship. In consulting various legal articles on the subject, they define the risks typically as:

• conflicts/disqualification,

• vicarious liability,

• insurance coverage disputes, and

• perhaps a few difficult-to-imagine outliers.

A. Conflicts/Disqualification

For conflict purposes, the of counsel affiliation means that the firm and the of counsel attorney will often be treated as one entity, thus governing disqualification, recusal, and any other conflict issues.

The problems are further compounded when a lawyer or firm has an of counsel relationship with more than one firm, since all of the lawyers in those firms may be disqualified, even if their only connection is the same of counsel lawyer, the proverbial “Pandora’s Box.”

B. Vicarious Liability

Of course a firm for which a lawyer serves only as “of counsel” is not going to be liable for the independent acts or omissions of the of counsel attorney that were not “within the scope” of the relationship, though those issues may still arise, especially if it would serve the purposes of an adversary in some way.

C. Insurance Coverage Disputes

In the unfortunate event of a claim, coverage problems can arise when an affiliated firm has done work on a matter that the of counsel attorney had no involvement in, or awareness of. Unfortunately, his name was listed on the letterhead so he may be named as a defendant. If the of counsel attorney is not covered by the affiliated firm’s malpractice policy, there may be a significant problem because the of counsel attorney’s own policy will often not afford coverage either. Or, at the very least, there becomes dueling “coverage denial,” between the malpractice insurance coverage carriers. Why? His policy only covers work done on behalf of clients of the named insured which in many instances is not the affiliated firm. These sorts of “who is the client,” “who is the attorney of record,” and “who is the named insured” are common challenges that underscore the necessity of investigating and addressing the insurance coverage issues early on. Appropriate coverage for the exposures of both the affiliated firm and the of counsel attorney can usually be obtained, so long as the issue is addressed at the outset. My experience, though very limited, is that these insurance coverage issues are not thought about when establishing this amorphous relationship.

Of Counsel to Multiple Firms

Can a lawyer, under the ethical rules discussed here, serve as of counsel to multiple firms? Most ethics opinions I have reviewed have concluded that the permissibility of an attorney’s affiliation with multiple law firms as ‘‘of counsel’’ is determined by the nature of the relationship between the attorney and the law firm, and not by any predetermined numerical limit on such affiliations.

ABA Formal Ethics Opinion 90-357 concluded that a lawyer may be ‘‘of counsel’’ to multiple law firms, without limit, provided that the association with each is ‘‘close, regular [and] personal.’’ But all of the caveats discussed here must now be applied to all of the of counsel/firm relationships, conflict/disqualification, insurance coverage, and vicarious liability.

Of Counsel/Firm Fee Sharing Considerations

Fee generating and fee sharing has to be at the root, in some fashion, as the ab initio reason for the creation of the firm/of counsel relationship.

Of course, the general ethics rules allow client fees to be apportioned in any manner within a firm without disclosure to or approval from the firm client. But since the of counsel falls outside of this relationship, we have to recognize that the ethics rules contain disclosure and client approval requirements when fees are shared between different firms.

These requirements are set forth in ABA Model Rule 1.5(e). This rule allows the division of a fee between different firms either (a) in proportion to the ‘‘services performed’’; or (b) in some other proportion provided that each firm agrees to assume ‘‘joint responsibility for the representation.’’ ABA Model Rule 1.5(e) also requires that the identity of the lawyers or law firms who will participate in the representation of the client and the division of responsibility be disclosed in writing to the client and that the client give informed consent to the entire fee-sharing arrangement.

Illinois ethics rules governing the of counsel relationship are consistent with the aforementioned concerns and conclusions, including fee sharing.

We have been discussing the general lawyer understanding of the “of counsel” status, and we have reviewed the generally accepted and ABA standards. Locally, the Illinois Code of Professional Responsibility does not define the term “Of Counsel.” However, former DR 2-102(A) (4) of the ISBA Code of Professional Responsibility provided, as follows:

A lawyer may be designated “Of Counsel” on a letterhead if he has a continuing relationship with a lawyer or law firm, other than as a partner or associate, and the term “Of Counsel” shown on a firm’s letterhead, and traditionally is used to indicate a former partner who is on a retirement or semi-retirement basis, or one who has retired from another partnership, from general private practice or from some public position and who remains or becomes available to the firm for consultation and advice, either generally or in a particular field.

Not dissimilar in any way to ABA Formal Op. 330, issued originally in 1972 and still the (national) standard.

Conclusion

After nearly 50 years in the practice of law, I have come across the term “of counsel” any number of times and, except for being curious, never bothered to investigate the actual definition and ethical ramifications of the relationship. In my nine years as a member of the Illinois Attorneys’ Registration and Disciplinary Commission Review Panel, the last three as the chair, and for any number of years before that as a member of the hearing panel of the ARDC, we never once had an ethical issue, lawyer charge, or were ever required to explore and apply a definition of the term of counsel. I have never seen it as an issue in a lawsuit, as a practicing attorney, including the 20-plus years I have served on the claims committee of our Illinois State Bar Association/Mutual Insurance Company. The last several years, I have served as Chairman of the Underwriting Committee of the ISBA/MIC and this status has never impacted the determination of a premium, coverage, denial of coverage, conflict, or any other hostile application.

So, to answer the question that began this article, in short, applying the most simple to understand and broadest definition of the term “of counsel,” it exists when the relationship between the lawyer and the firm is “close, continuing, and personal,” and a choice is made to become of counsel. Simple. Broad. I submit, still an amorphous term. 

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[Author’s note: I would like to give credit for the research done for this article by our Amari & Locallo law clerk, Tess Coughlan, a 3L at The John Marshall Law School.]