How many firms can a California 'of counsel' lawyer simultaneously serve, and what conflicts checking is required across those firms?

State Bar of California COPRAC Formal Opinion 1993-129: Multiple "Of Counsel" Designations and Imputed Conflicts Under Rule 3-310

Short answer: The opinion concluded that (1) a principal member or law firm may hold out another member or law firm as "of counsel" only where the relationship is "close, personal, continuous, and regular," with no absolute numerical limit on the number of such relationships, and (2) because of that relationship requirement, the principal and "of counsel" constituents are treated as a single de facto firm for purposes of Rule 3-310; conflicts attributable to one are presumptively imputed to the others, and a shared "of counsel" creates imputed conflicts across all sharing principals.

Currency note

This opinion was issued in 1993, before the State Bar of California's adoption of the November 1, 2018 revisions to the Rules of Professional Conduct. The opinion interprets former California Rules 1-400 (communications and solicitations) and 3-310 (conflicts). The substance is now in current California Rules 7.1 / 7.5 (communications and firm names) and 1.7 / 1.10 (concurrent conflicts and imputation). Subsequent rule amendments or 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 Treat this page as historical context, not current guidance.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, deadline, or requirement mentioned here.

Disclaimer: This is an advisory ethics opinion. Advisory opinions are not binding; they interpret the State Bar of California's rules of professional conduct and are persuasive authority. This summary is for research purposes only and is not legal advice. Verify current rules before acting on any specific guidance.

About this page: The plain-English summary and Q&A below were written by Ezel based on the official opinion. The opinion text is reproduced at the bottom; the official source (linked) controls.

View original opinion

Plain-English summary

The committee considered a hypothetical: a boutique firm "O" is listed as "of counsel" on the stationery of three principal firms A, B, and C. Each firm conducts conflicts checking only case-by-case with O on retentions, but no firm reconciles conflicts across A, B, and C, and the firms periodically take adverse positions on unrelated matters without obtaining written waivers.

Multiple relationships. Former Rule 1-400(E)(8) (effective May 27, 1989) deems a communication that states or implies a member is "of counsel" to another to be presumptively violative of Rule 1-400 unless the relationship is "close, personal, continuous, and regular." The committee opined that a law firm (rather than only an individual) can satisfy this standard. On the number of relationships, the committee rejected the strict numerical limit ABA Formal Op. 330 had imposed (no more than two) and adopted the qualitative test of ABA Formal Op. 90-357: there is no absolute numerical cap on "of counsel" relationships, but the qualitative criterion of "close and regular" is real, and the number cannot in practice extend much beyond two without losing the requisite closeness. In theory, firm O may serve as "of counsel" to A, B, and C.

Application of Rule 3-310. The committee opined that the practical limit on multiple "of counsel" relationships is conflicts, not branding. Where a relationship is sufficiently "close, personal, regular and continuous" to support the "of counsel" designation, the principal and the "of counsel" must be considered a single de facto firm for Rule 3-310 purposes (citing William H. Raley Co. v. Superior Court, 149 Cal.App.3d 1042 (1983)). Accordingly, if O is precluded from a representation by Rule 3-310, the principal is presumptively precluded as well, and vice versa (consistent with Cal. State Bar Formal Op. 1986-88 and Bar Ass'n of San Francisco Formal Op. 1985-1).

Shared "of counsel." Where two or more principals share the same "of counsel," the committee opined that all are constituents of a single de facto firm for Rule 3-310 conflicts purposes, exponentially increasing the compliance burden. The opinion expressly disapproved the contrary suggestion in Cal. State Bar Formal Op. 1986-88 that non-traditional "of counsel" arrangements might be sufficiently separate to avoid conflicts treatment.

The committee took no position on other ethical duties or professional obligations implicated by shared "of counsel" arrangements beyond Rule 3-310.

Common questions

Q: Is there a hard cap on the number of "of counsel" relationships under this opinion?

A: Per the opinion, no. The committee adopted ABA Formal Op. 90-357's qualitative approach, but noted that as a practical matter the requisite closeness is hard to maintain "much beyond two."

Q: What is the standard for an "of counsel" designation?

A: Per the opinion, the relationship must be "close, personal, continuous, and regular," and must not be that of partner, associate, or officer/shareholder under Business and Professions Code sections 6160-6172. This is the standard in former Rule 1-400(E)(8).

Q: Is a principal firm imputed with its "of counsel"'s conflicts?

A: Per the opinion, yes. The principal and "of counsel" are treated as a single de facto firm for Rule 3-310 purposes; conflicts run in both directions.

Q: If "of counsel" O is shared by firms A, B, and C, are A, B, and C imputed with each other's conflicts?

A: Per the opinion, yes. The committee viewed the relationship as if A, B, and C shared a common partner or associate, making all of them one de facto firm for Rule 3-310 purposes.

Q: Did the opinion address other ethical implications of shared "of counsel"?

A: Per the opinion, only Rule 3-310. The committee expressly declined to opine on other duties or obligations implicated by such relationships.

Background and rules framework

The opinion interprets former California Rules 1-400 (including (E)(8)'s presumption regarding "of counsel" communications) and 3-310 (conflicts), expressly disapproving an inconsistent comment in Cal. State Bar Formal Op. 1986-88. The substance is now in current California Rules 7.1, 7.5, 1.7, and 1.10.

Citations and references

Rules of Professional Conduct (former, in effect at time of opinion):

• Former California Rule 1-400 (communications and solicitations), particularly (D) and (E)(8)
• Former California Rule 3-310 (conflicts)
• ABA Formal Op. 330; ABA Informal Op. 1173; ABA Formal Op. 90-357 (cited)
• Former ABA DR 2-102 (cited)

Statutes:

• Cal. Bus. & Prof. Code sections 6160-6172 (legal corporations)

Cases:

• William H. Raley Co. v. Superior Court, 149 Cal.App.3d 1042 (1983), imputation among firm lawyers

Other opinions cited:

• Cal. State Bar Formal Op. 1986-88 (revisited; inconsistent comment disapproved)
• Bar Ass'n of San Francisco Formal Op. 1985-1
• San Diego County Bar Op. 1974-23
• L.A. County Bar Op. 423
• ABA Formal Op. 330, 90-357; ABA Informal Op. 1173

See also

• CA Ethics Op. 1997-150: Attorneys Sharing Space or Staff
• CA Ethics Op. 1993-128: Screening a Former Prosecutor
• CA Ethics Op. 1992-126: Temporary Attorney Employment Agencies

Source

• Landing page: https://www.calbar.ca.gov/legal-professionals/ethics-compliance-practice-resources/ethics/ethics-opinions
• Source HTML: https://www.calbar.org/ethics/Opinions/1993-129.htm

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinions - FORMAL OPINION NO. 1993-129

Editor's Note:

State Bar Ethics Opinions cite the applicable California Rules of Professional Conduct in effect at the time of the writing of the opinion. Please refer to the California Rules of Professional Conduct Cross Reference Chart for a table indicating the corresponding current operative rule. There, you can also link to the text of the current rule.

THE
STATE BAR OF CALIFORNIA

STANDING COMMITTEE ON

PROFESSIONAL RESPONSIBILITY AND CONDUCT
FORMAL OPINION NO. 1993-129

ISSUES:

1. May multiple "principal" law firms designate the same independent attorney or law firm as "of counsel" in their solicitations, including stationery and similar public announcements.

2. Absent written client waivers, may a principal law firm and its independent "of counsel" attorneys represent adverse or potentially adverse interests.

DIGEST:

1. In order to avoid false, deceptive or confusing communications, a principal member or law firm ("principal") may hold out another member or law firm as "of counsel" only where the relationship between them is "close, personal, continuous, and regular." So long as that standard is observed, there is no absolute limit to the number of "of counsel" relationships in which a member or firm may participate as "of counsel."

2. Due to the requirement to maintain a "close, personal, continuous, and regular" relationship within the principal and "of counsel" relationship, neither the principal nor "of counsel" members or law firm may represent adverse or potentially adverse interests except as authorized by rule 3-310 of the California Rules of Professional Conduct.

AUTHORITIES INTERPRETED:

Rules 1-400 and 3-310 of the California Rules of Professional Conduct of the State Bar of California.

DISCUSSION

The Committee has been requested to consider the application of the California Rules of Professional Conduct to the following "of counsel" relationship:

Law firm "O" maintains a specialty or "boutique" practice. As a result of that specialization, "O" is regularly employed by principal Law Firms "A," "B" and "C" to assist in specific matters for the principal firms' respective clients. "A," "B" and "C" each list firm "O" as "of counsel" on their stationery and public announcements.

Neither "O" nor "A", "B" and "C" regularly reconcile potential or actual conflicts of interest. Rather, a conflicts analysis is only conducted case-by-case between "O" and the retaining principal firm, "A", "B" or "C." No conflict reconciliation is conducted between "A", "B" and "C." "A", "B", "C" and even "O" periodically represent adverse or potentially adverse interests without obtaining written waivers from their respective clients. Indeed, such adverse and potentially adverse representations sometimes occur concurrently between "O" and its principal firm while the principal firm employs "O" in an "of counsel" relationship in an unrelated matter.

As set forth below, the proposed relationship creates serious and potentially prohibitive concerns.

I. Background

The use of the term "of counsel" has received significant attention in recent years. Nationwide, the American Bar Association has issued several formal and informal ethics opinions concerning the use of the term. In California, this Committee addressed the issue in State Bar Formal Opinion No. 1986-88 while the San Diego, San Francisco and Los Angeles Bar Associations have each issued one or more opinions of their own.

Much of the attention concerning "of counsel" relationships has resulted from the apparent proliferation of such relationships and a corresponding growth in the use of similar terms such as "counsel," "senior counsel," and "special counsel," to name a few. Ethics authorities have recognized four principal patterns of such relationships. (See ABA Formal Opn. No. 90-357.) Probably the most common is the circumstance of a part-time practitioner who is associated with another member or law firm on a basis different than the other members of the firm. Another common example is that of retired partners who desire to continue a less rigorous association with a firm. And, the "of counsel" title is also frequently used with laterally-hired attorneys participating in a probationary evaluation prior to admission as a partner. Finally, the title has also gained widespread use to describe senior attorneys employed in non-partnership track positions.

Prior to enactment of the current California Rules of Professional Conduct, State Bar Formal Opinion No. 1986-88 provided the most specific guidance concerning the proper use of the term by members. As the committee noted, the then-current rules provided little if any guidance concerning "of counsel" relationships. However, we recognized that the term was generally used:

[T]o describe a relationship between a lawyer or law firm and one listed as "of counsel" in which the person listed as "of counsel" has: (1) a close and personal relationship with the law firm; (2) is available to the listing firm or attorney for consultation and advice; (3) is not a partner, associate, or mere forwarder-receiver of legal business; (4) is compensated on the basis of individual cases; and (5) does not in other respects or in other cases share the continuing obligations of the listing lawyer or law firm.

Accordingly, based upon the proscriptions of former rule 2-101 of the California Rules of Professional Conduct concerning "false, deceptive or misleading" communications, and in the absence of a universally accepted definition, we concluded that "prudent" members should use the term "of counsel" only when the relationship conforms to the American Bar Association definition in former DR 2- 102 of the American Bar Association, Model Rules of Professional Conduct. (e.g., a "continuing relationship with a lawyer or law firm other than as a partner or associate"). (State Bar Formal Opinion No. 1986-88.)

Since the issuance of State Bar Formal Opinion No. 1986-88, the trend of widespread inconsistency in the use of the "of counsel" designation has continued. However, with the adoption of rule 1- 400 of the California Rules of Professional Conduct, members are now guided by specific rule-based authority concerning such relationships. In particular, through the Standards promulgated by the Board of Governors pursuant to rule 1-400, a "communication" which states or implies that a lawyer or a law firm is "of counsel" to another lawyer or a law firm is presumed to violate rule 1-400 unless the relationship is "close, personal, continuous, and regular" and other than that as a partner, associate or officer or shareholder pursuant to Business and Professions Code sections 6160-6172. (See rule 1-400(E)(8).)

II. Multiple "of counsel" relationships

In light of the foregoing, the issue as to whether a member or law firm may serve in multiple, simultaneous "of counsel" relationships depends upon an interpretation of the requirement that such relationships be "close, personal, continuous, and regular." This question has also received substantial scrutiny. In State Bar Formal Opinion No. 1986-88, for example, we concluded that law firms could maintain a sufficiently continuous relationship with another member or law firm to be listed as "of counsel" in the principal's solicitations.

We recognize the standard suggested in State Bar Formal Opinion No. 1986-88 has been replaced by the arguably more restrictive standard of "close, personal, continuous and regular." Nonetheless, we believe that nothing precludes a law firm and its constituent members from maintaining a close, personal, continuous, and regular relationship as an organization with another member or law firm. So long as the relationship involves more than merely collaborating upon an individual or occasional matter, forwarding or receiving legal business or infrequent independent consulting, we believe the standard is met. (See ABA Formal Opn. No. 90-357.) Thus, we conclude the current standard for "of counsel" relationships may still be satisfied where a law firm, rather than an individual member, serves in the "of counsel" role.

The American Bar Association has directed substantial attention to the question of whether its "close, regular, personal" standard implies such an intimate professional relationship that, by definition, it precludes a member or law firm from serving in multiple "of counsel" relationships. Originally, in Informal Opinion No. 1173, the American Bar Association first opined that a lawyer could not be of counsel to more that one firm. Then, in Formal Opinion No. 330, the American Bar Association modified that position to conclude that it was not possible for a lawyer to have a "close, regular, personal relationship" with more than two lawyers or law firms. Recently, however, in Formal Opinion No. 90- 357, the American Bar Association rejected that strict numerical standard in favor of a qualitative analysis emphasizing the need for all such "of counsel" relationships, no matter how many or few, to maintain a "close and regular" affiliation:

A lawyer can surely have a close, regular, personal relationship with more than two clients; and the Committee sees no reason why the same cannot be true with more than two law firms. There is, to be sure, some point at which the number of relationships would be too great for any of them to have the necessary qualities of closeness and regularity, and the number may not be much beyond two, but the controlling criterion is "close and regular" relationships, not a particular number. (ABA Formal Opn. No. 90-357.)

We agree with and adopt the reasoning of American Bar Association Formal Opinion No. 90-357 in this regard. Given the virtual identity of the American Bar Association standard of "close, regular, personal" with that expressed in rule 1-400(E)(8)of the California Rules of Professional Conduct as "close, personal, continuous and regular," we believe that the number of "of counsel" relationships in which a member or law firm may serve is limited not by any strict numerical standard. Instead, the number of such relationship is limited by strict observance of the qualitative criteria of rule 1-400. Thus, in theory, law firm "O" may serve as "of counsel" to law firms "A", "B" and "C."

III. Application of rule 3-310 of the California Rules of Professional Conduct.

In application, however, we suspect that the question of the application of conflicts analysis under rule 3-310 may pose a much more significant practical limitation upon the number of "of counsel" relationships which may be maintained simultaneously than the qualitative analysis set forth above. For, as we explain below, one consequence of the maintenance of an "of counsel" relationship is to make the principal and "of counsel" constituents of the same de facto law firm for conflicts purposes.

Rule 3-310 of the California Rules of Professional Conduct precludes a member from accepting or maintaining the representation of adverse interests without providing written disclosure to and/or receiving informed written consent from the member's client.

Generally, in the civil context, where an individual member is precluded from a representation by reason of rule 3-310, so also is the member's law firm. (E.g., William H. Raley Co. v. Superior Court (1983) 149 Cal.App.3d 1042, 1049 [197 Cal.Rptr.232].) For the same reasons, and consistent with State Bar Formal Opinion No. 1986-88, we believe that, to the extent the relationship between a principal member or law firm and another member or law firm is sufficiently "close, personal, regular and continuous," such that one is held out to the public as "of counsel" for the other, the principal and "of counsel" relationship must be considered a single, de facto firm for purposes of rule 3-310. Accordingly, if the "of counsel" is precluded from a representation by reason of rule 3-310 of the California Rules of Professional Conduct, the principal is presumptively precluded as well, and vice-versa. (Accord, Bar Association of San Francisco Formal Opn. No. 1985- 1.)

The implications of the "of counsel" relationship are even more far reaching where two or more principals share the same "of counsel." We view this relationship no differently than if two or more law firms shared one or more common partners, shareholders or associates. Thus, they will all be viewed effectively as constituents of one de facto firm for purposes of rule 3-310 of the California Rules of Professional Conduct. Consequently, by the seemingly innocuous events involved in holding out to the public a shared "of counsel," a principal member or law firm will exponentially increase the complexities of compliance with rule 3- 310 of the California Rules of Professional Conduct.

This opinion is issued by the Committee on Professional Responsibility and Conduct of the State Bar of California. It is advisory only. It is not binding upon the courts, the State Bar of California, its Board of Governors, any persons or tribunals charged with regulatory responsibilities, or any member of the State Bar.