Question

What does it mean to become of counsel to a law firm?

Answer

There has been a lot of discussion about the “of-counsel” status, especially as the average age of lawyers is increasing. The ABA Standing Committee on Ethics and Professional Responsibility and the State Bar of Wisconsin Professional Ethics Committee have issued formal opinions on the topic.

Wisconsin’s Professional Ethics Committee adopted the ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion when it issued Formal Opinion E-93-1. In that opinion, the Professional Ethics Committee noted the following characteristics regarding of-counsel status:

• The defining characteristic of the relationship is that the attorney has a close, regular, personal relationship with the law firm.

• The lawyer does not have the same shared liability and managerial responsibilities as a partner.

• The of-counsel attorney is subject to the same conflict of interest rules and any representation by the of-counsel attorney must be considered when the law firm is addressing conflicts of interest of current clients, former clients, and imputed conflicts.

The ABA Opinion and the Wisconsin Opinion went on to recognize the different types of scenarios when an of-counsel relationship would exist and noted four basic patterns for the relationship:

• A lawyer who practices law part time in association with the law firm but on a basis different from the firm’s mainstream lawyers in terms of compensation and billable-hour requirements;

• A retired partner of the firm who while not actively practicing law remains associated with the firm and available for occasional consultation;

• A lawyer who is a probationary partner brought into the firm from another practice with the expectation of becoming a partner in the firm; and

• A lawyer permanently designated as an associate who does not obtain partnership status but is a contributing member of the firm.

Under each of these scenarios, there is a recognition of the status of the lawyer as being different from an active partner or shareholder who is engaged in the practice of law and subject to billable-hour and revenue goals as an active lawyer in the firm.

It is important to recognize that an of-counsel lawyer still has the same professional responsibilities as a partner or shareholder lawyer but merely is treated differently within the organization. The of-counsel status can be identified on firm letterhead and other firm communications signifying the relationship between the lawyer and the law firm, but that does not change the professional responsibility requirements of the attorney and of the law firm.