December 21, 1984
A lawyer, as well as a law firm, may qualify for the designation of "of counsel."
A lawyer or law firm may be designated "of counsel" on letterhead if there exists a continuing relationship. This relationship is not improper, provided the relationship is close, regular and involves frequent contact instead of a mere forward and receiving of business relations.
When a lawyer serves as "of counsel" to a lawyer or law firm, both the lawyer and the lawyer's firm, as well as the "counseled" lawyer or firm are affiliated for purposes of determining the requirements of disqualification.
References: MCPR DR 2-102(A)(4) and DR 5-105(D); ABA Op 1315, i678, i1134.
A lawyer, practicing as a sole proprietor or within a professional corporation, wishes to list another law firm comprised of six lawyers as "of counsel" on the letterhead of the proprietorship or the P.C. The reason for such an arrangement would be "to facilitate the ongoing referral of cases and ongoing consultation between the inquirer's firm and the 'of counsel' firm." In the alternative, the inquirer wishes to list only one lawyer as "of counsel" and would direct all consultations and referrals to that lawyer at the other firm.
While the Committee has not previously addressed this exact inquiry, it has been addressed in American Bar Association Formal Opinion 330. In that Opinion the ABA indicates that it is never proper for a law firm to be designated as "of counsel" on another firm's or sole practitioner's letterhead, and further, that a lawyer may not be designated as "of counsel" to more than two law firms.
To properly answer your inquiry, the Ethics Committee finds that in light of the trend toward multi-state law firms, ABA Formal Opinion 330 would probably not be decided in the same manner today. There appears to be little rationale given to the arbitrary limitation of the "of counsel" designation to a sole or individual lawyer, thus eliminating a law firm from qualifying as "of counsel." MCPR DR 2-102(A)(4) refers to "a lawyer" and this phrase is to be found throughout the entire Code where it is clear from the context that the phrase applies to an entire law firm as well as to one lawyer. Thus, a lawyer or law firm should be able to qualify for the designation of an "of counsel" classification providing that the relationship between the principal and the designee is "close, continuing and personal," and more than for the sole purpose of referrals.
Neither ABA Model Rules of Professional Conduct (1983), nor the ABA Model Code of Professional Responsibility (1980), prohibits the communication that one law firm is "affiliated" or "associated" with another as long as the relationship is not false or misleading and the law firms adhere to the applicable rules regulating disclosure of confidential information and conflicts of interest as if they were a single firm.
The lawyer or law firm described as being "of counsel" to another lawyer or law firm must have a continuing or semi-permanent relationship with that lawyer or firm, and not a relationship better described as a forwarder-receiver of legal business. See MCPR DR 2-102(A). This relationship with the lawyer or law firm must be a close, regular and personal relationship. For example, the relationship of a retired or semi-retired former partner who remains available to the firm for consultation, or a retired public official who regularly and locally is available to the firm for consultation and advice. See ABA i678.
While it would be misleading to refer to a lawyer who shares in the profits and losses and general responsibility of a law firm as being "of counsel," the lawyer who is "of counsel" may be compensated as a sui generis member of that law office, however, and not as an outside consultant. Generally speaking, the close, personal relationship indicated by the term "of counsel" contemplates either that the lawyer practice in the offices of the lawyer or law firm to which he is "of counsel" or that his relationship, for example, be so close that he is in regular and frequent, if not daily, contact with the office of the lawyer or firm. See ABA i1134. The term obviously does not apply to the relationship which is merely that of a forwarder and receiver of legal business. In short, the individual lawyer or law firm who properly may be shown to be "of counsel" to a lawyer or law firm is a member or component part of that law office, but his status is not that of a partner or an employee, nor that of a shareholder of a professional corporation.
It is important to recognize the potential reciprocal conflict of interest problems in an "of counsel" relationship. The principal lawyer or law firm and the designee should be careful that they do not simultaneously represent persons whose interest conflict with the client's interests. ABA Op 1315 and MCPR DR 5-105(D), apply to reciprocal "of counsel" arrangements between two firms.
When a lawyer or law firm elects to be "of counsel" to another, and communicates that fact to the public and clients, there is no practical distinction between the relationship of separate offices in a law firm. Under both the Model Rules and the Model Code, the Committee would ordinarily apply the same analysis to both arrangements to determine when the firms have a disqualifying conflict on interest, treating the "of counsel" firms for this purpose as a single firm. Thus, within the meaning of MCPR DR 5-105(D) the inquirer or the inquirer's firm would be disqualified to hand any matter in which the "of counsel" firm was disqualified, and the "of counsel" firm would likewise be disqualified from handling any matter from which the inquirer or inquirer's firm were disqualified.