Home / Examining Ethics / Examining Ethics: Not an associate, not quite a partner – ethical rules applicable to the title “Of Counsel”

Examining Ethics: Not an associate, not quite a partner – ethical rules applicable to the title “Of Counsel”

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Kathleen Carter

Let’s face it, lawyers, like most other professionals, like titles. They signify our stature within our firms and among our peers. More importantly, they help convey our position and experience level to the public. While in law school, students working in law offices and with governmental employers often work under the title “intern,” “law clerk,” or “summer associate.” Upon graduation, most lawyers are given the title “associate.”

Prior to being admitted, a young lawyer’s signature block should include something to the effect of “not yet admitted” so that any communication is not be viewed as having been sent from a licensed attorney. Many associates strive to become a “partner,” a title which traditionally signifies an ownership interest in a firm, and eventually “practice group chair” or even “managing partner.” However, not all associates become partners or owners in their firms. As recent NYSBA Ethics Opinion 1137 notes, “[t]he term ‘associate’ often conveys the status of a junior lawyer who is not a partner or principal but is regularly employed by the firm,” and the title “associate” may not be appropriate for lawyers who are no longer junior but are still firm employees as opposed to owners.

Many lawyers more than 10 years out of law school who work as employees of law firms take on the title of “counsel” or some derivation thereof such as “of counsel” or “senior counsel.” Those with the title of “counsel” are often compensated differently than associates, and may be entitled to profit sharing or a percentage of the fees they generate. At some firms, the title “counsel” is reserved for those attorneys with a specialized field of practice important to the firm that does not fit within a defined practice group. At others, the title might be used by retired partners who still maintain a physical office at the firm, a listing on the firm’s website or some other connection to the firm. Still other firms bestow the title of “counsel” on attorneys who share office space but have their own clients and may do work for both firm clients and their own clients.

When naming a lawyer “of counsel,” firms must be careful not to violate the New York Rules of Professional Conduct, particularly those focused on advertising and conflicts of interest. Rule 7.5(a)(4) states that “A lawyer or law firm may be designated ‘Of Counsel’ on a letterhead if there is a continuing relationship with a lawyer or law firm, other than as a partner or associate.” NYSBA Ethics Opinion 788 explains that “[w]e have interpreted the ‘of counsel’ relationship to mean that the of counsel lawyer is ‘available to the firm for consultation and advice on a regular and continuing basis.’”

Comment 1 to Rule 7.5 warns that “[l]awyers should not hold themselves out as being partners or associates of a law firm if that is not the fact, and thus lawyers should not hold themselves out as being partners or associates if they only share offices,” leaving open the possibility that those who share offices may hold the title of “counsel.” Of course, NYSBA Ethics Opinion 773 and ABA Ethics Opinion 90-357 make clear the title should only be used if there is a “close, regular, personal relationship and the use of the title is not otherwise false or misleading.”

As noted above, attorneys named “of counsel” to a firm may be permitted by the firm to take on their own clients who are not also clients of the firm. However, those non-firm clients should be included in the firm’s conflict system or database because Rule 1.10(a) provides that the conflicts of one lawyer associated with a firm are imputed to the other lawyers in that firm, and according to NYSBA Ethics Opinion 773, those with the title “of counsel” are sufficiently associated with a firm to trigger imputation.

Before being hired as “of counsel” or hiring your first “of counsel” attorney, you may wish to review the Rules of Professional Conduct and NYSBA Ethics Opinion 1137, which identifies many of the rules and risks associated with that title. The Ethics Committee of the Monroe County Bar Association can help attorneys better evaluate their ethical dilemmas and provide guidance. If you have a situation that implicates the professional rules, you can submit a confidential inquiry to the Ethics Committee at ethics@mcba.org or (585) 546-1817. After receiving the inquiry, the Ethics Committee members examine the situation presented, consult the rules of professional conduct, and issue oral opinions and advice. The Ethics Committee welcomes inquiries from all attorneys.

Kathleen Carter is chair of the Ethics Committee. The opinions expressed herein are those of the author and not those of the MCBA or its Ethics Committee

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