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Of Counsel or Off Counsel

What’s your definition of the term “Of Counsel”?   Your idea of Of Counsel may just depend on whether you are a retired judge, or a lawyer seeking to keep your hand in the practice of law.  Or perhaps you’re a young, dynamic attorney looking to market your firm and want to reach a wider constituency either by adding an Of Counsel to your firm or by having yourself designated as Of Counsel at another firm.

Of Counsel may mean different things to different people as the term has evolved over the years, but generally speaking today there is consensus that an attorney that is Of Counsel is taken to mean that the attorney maintains a regular, close, continuous, and personal relationship with that firm.   One test is what would the reasonable consumer be led to believe by reading a letterhead that included names with the designation “Of Counsel”?  Letterhead acts an advertisement, a statement to the public that these certain named attorneys are related in the practice of law; the communication, like any other law firm communication, cannot be false or misleading.

Because of the flexibility of the Of Counsel title, the position can still mean different duties in different circumstances.  Retired partners often opt for Of Counsel status, even though their court time may become more primarily golf time.  Still, they are available for consultation and maintain a tie with their firm.  That is different from the solo attorney who wants to create a permanent tie with another firm but does not necessarily want to limit herself to one firm’s practice.  It may also be a law firm seeking to expand its areas of practice by adding experts in those areas while not saddling the firm with another full time attorney salary.

Work an Of Counsel performs on behalf of the firm or firm’s clients should be covered under the firm’s malpractice policy although in most other respects, the business relationship is more like that of an independent lawyer/contractor than as an employee.

One question that often arises with the “Of Counsel” moniker is how the Of Counsel and the law firm deal with conflicts or potential conflicts with firm or Of Counsel clients.   That will be the subject of our next blog.

Mara J. Mamet                       Ziyad I. Naccasha