When can a lawyer or firm use the title 'of counsel' to describe a relationship with another lawyer or firm, and what conflicts consequences follow?
Apply this to your situation
This page answers the general question as of 1990. Ask about yours and see what the current rules of professional conduct in your state say for your facts, with citations.
Plain-English summary
The committee revisited the use of "of counsel," superseding Formal Opinion 330 (1972) and a set of older informal opinions. It located the governing standard in the bar on misleading communications, reading Rule 7.5(a) (a lawyer may not use a professional designation that violates Rule 7.1) together with Rule 7.1 (no false or misleading communication about the lawyer or the lawyer's services). The "essence of the ethical requirement," the committee said, "is avoidance of misrepresentations as to the lawyer's status, and the relationship between lawyer and firm," and the move from the Model Code to the Model Rules made no substantive change.
On meaning, the committee held that the core characteristic of an of-counsel relationship is a "close, regular, personal relationship" that is neither that of a partner nor that of an ordinary associate. It identified four patterns it considered properly designated of counsel: a part-time practitioner associated with the firm, a retired partner who remains available for occasional consultation, a lawyer who is a probationary partner-to-be, and a permanent status between partner and associate. The opinion disavowed readings of Formal Opinion 330 that excluded retired partners based on compensation arrangements or that required near-daily contact. It also reconsidered older limits, concluding that a lawyer is not categorically barred from being of counsel to more than two firms so long as each relationship is genuinely close and regular, and that a firm may be of counsel to another firm. The committee held the title may not be used for a relationship involving only a single case, a forwarder or receiver of business, occasional collaboration, or an outside consultant.
The opinion stressed the conflicts consequence. Because an of-counsel lawyer "is 'associated in' and has an 'association with' the firm," all disqualifications are imputed under Rule 1.10 (and, for former government service, Rules 1.11 and 1.12), and the lawyer is treated as a lawyer in the firm for the witness-advocate rule under Rule 3.7(b). The practical effect of two or more firms sharing an of-counsel lawyer is "to make them all effectively a single firm, for purposes of attribution of disqualifications." The committee also required that any jurisdictional limits on the of-counsel lawyer's right to practice be indicated under Rule 7.5(d), and addressed when a retired partner's name may remain in the firm name.
Currency note
This opinion was issued in 1990, before the American Bar Association's adoption of the 2002 (Ethics 2000) revisions to the Model Rules of Professional Conduct, which revised Rules 7.1 and 7.5 and the imputation rules. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Common questions
Q: What relationship justified calling a lawyer "of counsel"?
A: A close, regular, personal relationship with the firm that is not that of a partner or an ordinary associate, and whose use is not false or misleading.
Q: Could a lawyer be "of counsel" to more than two firms?
A: The committee disavowed a fixed two-firm cap, concluding a lawyer is not barred from being of counsel to more than two firms so long as each relationship is genuinely close and regular, though imputation practically limits the number.
Q: What were the conflicts consequences of an of-counsel relationship?
A: The opinion held the of-counsel lawyer is associated with the firm, so all conflicts are imputed both ways under Rule 1.10, effectively merging the lawyer and the firm (or multiple firms) for disqualification purposes.
Q: When could the title not be used?
A: For a relationship involving only a single case, a forwarder or receiver of legal business, occasional collaboration among otherwise unrelated lawyers, or an outside consultant.
Background and rules framework
The opinion interpreted Rule 7.5 (firm names and professional designations) and Rule 7.1 (false or misleading communications) as the source of the misleading-designation standard, and Rule 1.10 (imputation of conflicts), Rules 1.11 and 1.12 (former government and judicial service), and Rule 3.7(b) (lawyer as witness) for the conflicts consequences. It traced parallel Model Code provisions (DR 2-102, DR 5-105(D)). Because the ABA interprets the Model Rules directly, there is no state-rule analogue.
Citations and references
Rules of Professional Conduct:
- MR 7.5(a), (d) (firm names and professional designations; jurisdictional limitations)
- MR 7.1 (false or misleading communications)
- MR 1.10 (imputation of conflicts within a firm)
- MR 3.7(b) (lawyer as witness; imputation to the firm)
Other opinions cited:
- ABA Formal Op. 330 (1972): the prior of-counsel opinion, superseded and withdrawn by this opinion
- ABA Formal Op. 84-351 (1984): two firms presenting themselves as "affiliated" or "associated"
See also
- ABA Formal Op. 94-388: Relationships among law firms
- TX Ethics Op. 119: Lawyer status on side-business letterhead
Source
- Landing page: ABA Formal Ethics Opinions index
- Original PDF: 90-357.pdf
What do the rules say today, for your facts?
This opinion is from 1990. Ezel checks the current rules of professional conduct in your state against your situation and cites the rules it relies on.
Opens in Ezel Pro.
- Checks the law as it stands today, not only this page
- Cites every source it relies on, so you can verify it
- Chat, drafting and research in one workspace