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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 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.

The term “Of Counsel” has evolved over the years and may mean different things to different people, but generally speaking an attorney that is Of Counsel maintains a regular, close, continuous, and personal relationship with a firm. Ask yourself, “What would the reasonable consumer be led to believe by reading a letterhead that included names with the designation Of Counsel?” A letterhead acts an advertisement – a statement to the public that these specific 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 refer to 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 ties with their firm. That is different from a solo attorney who wants to create a permanent tie with another firm but does not necessarily want to limit himself or herself to one firm’s practice. Of counsel may also refer to 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 that an Of Counsel performs on behalf of a firm or firm’s clients should be covered under the firm’s malpractice policy, although in most other respects the business relationship is more similar to an independent lawyer/contractor than 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.

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