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What Does ‘Of Counsel’ Mean? | Explore Law Firms and Legal Advice

Like most companies, law firms have a hierarchy of naming conventions that apply to the individuals who work for them. These titles typically range in ranking from paralegal to associate to partner.

Most titles have straightforward meanings, but the title “of counsel” is used to reflect a multitude of employment arrangements. In general, it is typically applied to lawyers at a law firm who are neither associates nor partners.

Under the American Bar Association Formal Opinion 90-357, “of counsel” is an appropriate title for a lawyer with a law firm when “the relationship between the two is a close, regular, personal relationship and the use of the title is not otherwise false or misleading.”

When to Categorize a Lawyer as ‘Of Counsel’

Generally, a working relationship between a lawyer and a law firm is sufficient for the “of counsel” title. Typically, that relationship will fall under four categories, as identified in the ABA’s opinion:

  1. A part-time practitioner whose practice differs from that of the standard firm lawyer.
  2. A semi-retired partner whose association with the firm has not ended and remains available for some matters.
  3. A probationary partner-to-be who is brought to the firm with the assumption that they will become partner shortly thereafter.
  4. A person whose position falls between associate-level and partner-level, so they have more experience than an associate but are not close to being promoted to partner.

While these are the most common use cases for “of counsel,” this list is not exhaustive. The ABA, however, warns against firms using the “of counsel” title if the lawyer is merely helping the firm on a single case, forwarding or receiving legal business, occasionally collaborating with the firm, or operating as an outside consultant.

The ABA guidelines do allow lawyers to serve as “of counsel” at several different firms, as long as they conduct regular business with each firm.

Limits of ABA Guidelines for Titles

It is important to note that while the guidelines outlined by the ABA are clear, they are not enforceable. That is because it is up to the courts and local jurisdictions to adopt or adapt guidelines to govern attorneys within their jurisdiction.

“Model Rules of Professional Conduct promulgated by the American Bar Association are not rules that are in effect anywhere,” says Karen Orlin, attorney at law and managing member of law firm Karen J. Orlin PL. “They are suggested model forms of rules to be considered by the agencies and each state to determine whether to adapt them in that form or in other forms.”

For example, while New York has adopted a definition of “of counsel” that is closely based on the ABA definition, Florida has no specific definition for the title. This means that in the state of Florida, the term is more open to interpretation by the firms that operate in the state.

When Firms Decide to Take on ‘Of Counsel’ Members

When law firms explicitly hire “of counsel” lawyers – rather than recategorize pre-existing members of the firm – they usually do so to add expertise in an area of law not currently covered by the lawyers already employed by the firm.

“(Candidates) usually have some area of experience that is proven not only by their CV or resume, but also by references and by some other publications or other work that they’ve done that will benefit the firm in some way,” Orlin says.

The hiring process for “of counsel” lawyers looks the same as it does for partners or associates. Typically, candidates will go through a series of interviews that gradually meet with more senior people within the firm or department.

However, sometimes individuals might be brought in through contacts of senior management. This is because having more “of counsel” members can make the firm more marketable, according to Orlin.

“From the firm’s perspective, it’s easier to sell that lawyer’s services to the firm’s clients than it is to sell the services of an associate that’s not supervised,” Orlin says. It can also allow firms to operate more efficiently by having flexible help during busy times, without the guarantee of consistent client work or the salary of a full-time lawyer.

Nonetheless, there are risks associated with categorizing lawyers as “of counsel.” This can include introducing conflicts of interest, as well as vicarious liability and insurance coverage disputes. Firms should be careful to specifically outline when “of counsel” lawyers use firm letterhead or represent themselves on behalf of the firm. If they claim to represent the firm in unrelated matters, the firm can be subject to vicarious liability and malpractice claims.

Why a Lawyer Might Benefit from the ‘Of Counsel’ Title

Being categorized as “of counsel” benefits lawyers in several ways. Sometimes, individuals are unwilling or unable to obtain a partner title. Retired partners, in particular, often prefer the title so they can remain connected to their firms for specialized matters, without the obligations of being a partner.

The “of counsel” arrangement provides flexibility for lawyers who do not want to be tied to only one firm. This can become important for experienced lawyers in practice areas that have boom and bust cycles, like securities or corporate work. Lawyers in these practice areas – which are flush during good times but suffer during recessions – may be averse to starting a solo practice where they would be less insulated from risk.

In those situations, Orlin says, granting the “of counsel” title to the lawyer is a way of recognizing the lawyer’s seniority and experience with a more prestigious title than associate.

An “of counsel” lawyer’s compensation is nothing to sniff at either. According to BCG Attorney Search, at the nation’s top law firms, these lawyers may make as much as $375,000 per year.

Sarah Goldberg
Sarah Goldberg

Sarah is a seasoned financial market expert with a decade of experience. She's known for her analytical skills, attention to detail, and ability to communicate complex financial concepts. She holds a Bachelor's degree in Finance, is a licensed financial advisor, and enjoys reading and traveling in her free time.

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