Of counsel

Of counsel is often the title of an attorney who is employed by a law firm or organization, but is not an associate or partner.

American Bar Association Formal Opinion 90-357 provides four acceptable definitions of the term:

1. A 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. Such part-time practitioners are sometimes lawyers who have decided to change from a full-time practice, either with that firm or with another, to a part-time one, or sometimes lawyers who have changed careers entirely, as for example former judges or government officials.
2. A retired partner of the firm who, although not actively practicing law, nonetheless remains associated with the firm and available for occasional consultation.
3. A lawyer who is, in effect, a probationary partner-to-be: usually a lawyer brought into the firm laterally with the expectation of becoming partner after a relatively short period of time.
4. A permanent status in between those of partner and associate, having the quality of tenure, or something close to it, and lacking that of an expectation of likely promotion to full partner status.

The title of "of counsel" carries with it particular ethical responsibilities. For instance, for the purposes of a conflict of interest, a legal relationship sufficient to permit the title of "of counsel" is also able to create conflicts.

According to ABA Formal Opinion 90-357 the term "of counsel" is to describe "a close, regular, personal relationship." Accordingly, by definition, "temporary lawyers" used by law firms to engage in document reviews for a specific project or for limited duration are not "of counsel." See, e.g., The Economics and Ethics of Hiring a Temporary Lawyer by Peter J. Gardner ("A temporary lawyer is not 'of counsel'"); Wisconsin Lawyer ("'Temporary lawyer' does not include a lawyer who has an 'of counsel' relationship with a law firm or who is retained in a matter as independent associated counsel"); National Association for Legal Career Professionals (separately defining "contract attorney/temporary attorney" as substantively distinct from "of counsel"); Washington State Bar Association (expressly distinguishing between "contract lawyer" and "of counsel"); Contract Lawyers in Kentucky (relying upon ABA Formal Opinion 88-356 in specifically distinguishing "contract lawyers" and "temporary lawyers" from the meaning "of counsel"); The Of Counsel Agreement: A Guide for the Law Firm and Practitioner ("the use of the title 'Of Counsel' is permissible . . . as long as the 'Of Counsel's' relationship with another lawyer or firm is close, regular and personal and the use of the title is not otherwise false or misleading," and among the arrangements specifically excluded from the use of this designation are where the attorney is involved in only "a single case" for the law firm or constitutes an "outside consultant").

See also

• Counsel