The Perils of “Of Counsel” Relationships

Who is interested in forming “Of Counsel” relationships?  Just about everyone, as it turns out – lawyers entering firms, lawyers leaving firms, new lawyers who are setting up a practice.

Many of us are drawn professionally to the idea of affiliating with others.  Call it collegiality without the baggage of partnership.

Or is it?

Being “Of Counsel” involves more than adding some words to your letterhead.  Once you form an “Of Counsel” affiliation you are a “firm member” under the Oregon Rules of Professional Conduct (ORPC 1.0(d)).  If any member of the firm has a conflict, you have a conflict and vice versa.  See ORPC 1.7, 1.9 and 1.10 and OSB Formal Opinion 2005-155.

If you form an “Of Counsel” relationship, you must also be prepared for potential vicarious liability.

So who or what is “Of Counsel?”

  • Is an “Of Counsel” lawyer an associate?
    NO
  • Is an “Of Counsel” lawyer a partner?
    NO
  • If I associate someone outside the firm to work with me on a specific case, are they “Of Counsel?”
    NO
  • If I have my own practice and provide contract lawyering services to multiple firms, am I “Of Counsel” to each of those firms?
    NO

A lawyer is “Of Counsel” if he or she has a continuing professional relationship with a lawyer or law firm, other than as a partner or associate.  ORPC 7.5(b).  Hiring an independent contract lawyer to perform discrete tasks or associating with another lawyer on a specific case does not constitute a “continuing professional relationship.”

But that isn’t the end of it.  “Of Counsel” relationships can get complex quickly.  For example:

When it comes to analyzing ethical duties and potential liability, words and actions matter.

If you are considering entering to an “Of Counsel” relationship, please read this excellent article from Emilee Preble, PLF Staff Attorney/Excess Program Coordinator.  If you have any doubts about the ethical considerations involved in these arrangements, contact the Oregon State Bar General Counsel’s office.

Copyright 2011 Beverly Michaelis