Can a firm represent one co-defendant when an 'of counsel' lawyer at the same firm represents the other?

Plain-English summary

The opinion addressed whether a lawyer may represent a criminal defendant when a co-defendant in the same prosecution is represented by a second attorney who is listed on the firm's letterhead as "of counsel." The Board first discussed the meaning of "of counsel." Drawing on ABA Formal Opinion 90-357, it described the core of the relationship as a close, regular, personal relationship that is neither that of a partner nor that of an associate, and noted the ABA's view that the term should not be used for a single-case relationship, a forwarder or receiver of business, occasional collaboration, or an outside consultant.

The Board concluded that using "of counsel" on letterhead and other public materials should denote more than casual contact such as office sharing, and that requiring a close, regular, personal relationship accords with the public's reasonable expectations and with the Standards barring false or misleading representation of professional status (Standards 8 and 9, EC 2-11 and EC 2-13).

Given that close relationship, the Board reasoned that the conflict analysis for "of counsel" attorneys should mirror the analysis for partners and associates. Under Standards 35 and 36 and DR 5-105(B), a lawyer may not continue multiple employment where independent professional judgment for one client will likely be adversely affected by representing another, subject to the Standard 37 exception where the lawyer can adequately represent each client and each consents after full disclosure. Under Standard 38 and DR 5-105(D), if the lawyer must decline or withdraw, no partner or associate may take or continue the employment. The Board extended that imputation to "of counsel" attorneys: when an "of counsel" attorney would have to decline or withdraw under Standards 35, 36, and 37, then under Standard 38 no partner, associate, or other "of counsel" attorney of the firm may accept or continue the employment.

Currency note

This opinion was issued in 1998, before the State Bar of Georgia adopted the Georgia Rules of Professional Conduct in 2001, which replaced the Standards of Conduct this opinion construes. The State Bar's headnotes map Standards 8 and 9 to Rules 7.5(a) and 7.1, Standards 35, 36, and 37 to Rules 1.7(a) and 2.2(a), and Standard 38 to Rule 1.10, and they note that Rule 1.7 was amended on November 3, 2011 to require that consent to a conflicted representation be informed, confirmed in writing, and preceded by a separate writing advising of reasonably available alternatives. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Is an "of counsel" lawyer treated like a member of the firm for conflicts?

A: Yes, under this opinion. Because an "of counsel" lawyer must have a close, regular, personal relationship with the firm, the Board applied the same conflict and imputation standards that apply to partners and associates.

Q: Can one firm lawyer represent a co-defendant when an "of counsel" lawyer represents the other?

A: Generally no. The opinion concluded that if the "of counsel" lawyer would have to decline or withdraw under the conflict standards, then under Standard 38 no partner, associate, or other "of counsel" lawyer of the firm may accept or continue the representation.

Q: What does "of counsel" require on letterhead?

A: The opinion said the designation should denote more than casual contact such as office sharing; it requires a close, regular, personal relationship with the firm, consistent with the rules against misleading representation of professional status.

Background and rules framework

The opinion construed former Standards of Conduct 8 and 9 (truthful representation of professional status; firm names), 35, 36, and 37 (conflicts in multiple representation and consent), and 38 (imputed disqualification), together with EC 2-11, EC 2-13, and DR 5-105, now associated with Rules 7.5(a)/7.1, 1.7(a), 2.2(a), and 1.10. It relied on ABA Formal Opinion 90-357 for the meaning of "of counsel."

Citations and references

Rules of Professional Conduct:

• MR 1.7 / Ga. RPC 1.7(a) (conflicts in multiple representation; former Standards 35-37, DR 5-105(B)/(C))
• MR 1.10 / Ga. RPC 1.10 (imputed disqualification; former Standard 38, DR 5-105(D))
• MR 7.5 / Ga. RPC 7.5(a) (firm names and letterhead; former Standards 8 and 9)

Former standards construed:

• Standards of Conduct 8, 9, 35, 36, 37, 38; EC 2-11, EC 2-13; DR 5-105

Other opinions cited:

• ABA Formal Opinion 90-357 (1990) (the "of counsel" designation), reaffirming in part ABA Formal Opinion 330 (1972)
• Florida PEC Opinion 94-7 (1995); California Formal Opinion 1993-129; New York State Bar Opinion 262 (1972)

See also

• ABA Formal Op. 90-357: The "Of Counsel" Designation
• ABA Formal Op. 94-388: Relationships Among Law Firms
• GA Ethics Op. 86-2: Part-Time Judge as Defense Counsel

Source

• Landing page: https://www.gabar.org/handbook?rule=rule516

Original opinion text

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

State Bar of Georgia

Issued by the Supreme Court of Georgia

On October 29, 1998

Formal Advisory Opinion No. 98-4

For references to Standard of Conduct 8, please see Rule 7.5(a) ; (incorporating Rule 7.1 ).

For references to Standard of Conduct 9, please see Rules 7.1 and 7.5(a) .

For references to Standard of Conduct 35, please see Rule 1.7(a) .

For references to Standard of Conduct 36, please see Rule 2.2(a) .

For references to Standard of Conduct 37, please see Rule 2.2(a) .

For references to Standard of Conduct 38, please see Rule 1.10 .

For references to EC 2-11, please see Rule 7.5(a) (incorporating Rule 7.1 ) and Comment [2] of Rule 7.5 .

For references to EC 2-13, please see Rule 7.5(d) and Comment [1] of Rule 7.5 .

For references to DR 5-105(B), please see Rule 1.7(a) .

For references to DR 5-105(C), please see Rule 1.7(b) , which includes additional procedural requirements.

Rule 1.7 is recited in this opinion; however, Rule 1.7 was amended on November 3, 2011, and now indicates that consent to representation of two clients with potentially conflicting interests must be “informed” and “confirmed in writing,” and be preceded by a separate writing that also advises the clients of “reasonably available alternatives” to the representation.

For references to DR 5-105(D), please see Rule 1.10(a) .

For an explanation regarding the addition of headnotes to the opinion, click here .

QUESTION PRESENTED:

Is it ethically proper for a lawyer to represent a criminal defendant when a co-defendant in the same criminal prosecution is represented by a second attorney who is listed on letterhead as "of counsel "to the same law firm?

SUMMARY ANSWER:

Because an attorney who is held out to the public as "of counsel "should have a close, regular, personal relationship with the affiliated firm, the standards of conduct applicable to multiple representations by partners and associates of law firms, should also apply to "of counsel "attorneys. Accordingly, when an "of counsel "attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then under Standard 38, no partner, associate or other "of counsel "attorney of the principal firm may accept or continue such employment.

OPINION:

I. Use of the Term "Of Counsel "on Materials Intended for Public Distribution.

The use of the term "of counsel "to denote relationships between attorneys and law firms has increased in recent years. Traditionally the term was used to designate semi-retired lawyers who desired to maintain a regular association with a law firm for which they were previously a full-time attorney. Today, the term "of counsel "is used to describe a wide range of associations and relationships including lateral hires or attorneys who are in-between associate and partnership classifications. While the primary purpose of this opinion is not to limit or define the terms of such relationships, the Board does believe that some clarification is necessary to protect members of the public who may rely upon the "of counsel "designation in selecting legal representation.

Although the Georgia Code of Professional Responsibility does not define the term "of counsel ", the American Bar Association has issued a formal opinion which describes the core characteristics of the term as follows:

... A close, regular, personal relationship ; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term 'associate', which is to say a junior non-partner lawyer, regularly employed by the firm.

(Emphasis added). ABA Formal Advisory Opinion 90-357 (1990). The ABA also continues to adhere to aspects of its earlier opinion which prohibited the use of the term "of counsel "to designate the following relationships: (1) a relationship involving only a single case, (2) a relationship of forwarder or receiver of legal business, (3) a relationship involving only occasional collaborative efforts, and (4) relationship of an outside consultant. See ABA Formal Opinion 90-357 (1990) (reaffirming in part ABA Formal Opinion 330 (1972)). Other jurisdictions which have considered this issue have adhered to the ABA's description of the "of counsel "relationships. See Florida Professional Ethics Committee Opinion Nos. 94-7 (1995); State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 1993-129 and the New York State Bar Association Committee on Professional Ethics Opinion No. 262 (1972).

The Board is of the opinion that the use of the term "of counsel "on letterhead, placards, advertisements and other materials intended for public distribution should denote more than casual contact such as mere office-sharing arrangements and that requiring a close, regular, personal relationship between the "of counsel "attorney and the principal firm is in accordance with the reasonable expectations of the consuming public. Requiring attorneys who are held out to the public as "of counsel "to have a close, regular, personal relationship with the principal firm is also in keeping with well-established standards of conduct requiring lawyers to be scrupulous in the representation of their professional status and prohibiting attorneys from practicing under trade names which are false, fraudulent, deceptive or that would tend to mislead laypersons as to the identity of lawyers actually practicing in the firm. See Standards of Conduct 8 and 9 and EC 2-11 and EC 2-13.

II. Conflicts Analysis for "Of Counsel "Relationships.

The issue as to whether or not a member of a law firm may represent a defendant who potentially has an adverse interest to a co-defendant in the same criminal prosecution and who is simultaneously being represented by an "of counsel "attorney to the same firm must be analyzed in light of the requirement that such an "of counsel "relationship be "close, regular and personal."The Board believes that the prudent and ethical course is for the attorneys involved to apply the same standards in analyzing this potential for conflict of representation as would be applied in more traditional relationships existing between associates and partners with other attorneys in their law firms.

Under these long-standing rules, an attorney is prohibited from continuing multiple employment if the exercise of his independent professional judgment on behalf of a client will be, or is likely to be, adversely affected by his representation of another client. See Standards of Conduct 35 and 36 and DR 5-105(B). If the lawyer is required to decline or withdraw from employment due to the reasons stated in Standards 35 and 36, then no partner or associate of his firm may accept or continue such employment. See Standard of Conduct 38 and DR 5-105(D). The standards do provide for an exception if it is obvious that the lawyer can adequately represent the interest of each of the clients and each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's professional judgment on behalf of each client. See Standard of Conduct 37 and DR 5-105(C).

In addition to associates and partners of law firms, the Board believes that these are sound principles for "of counsel "attorneys to follow as well. This is especially true, given the requirement that attorneys listed as "of counsel "on letterhead and other materials distributed to the public have a close, regular, personal, relationship with the principal firm. Accordingly, when an "of counsel "attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then, under Standard 38, no partner, associate or other "of counsel "attorney of the principal firm may accept or continue such employment. This opinion is consistent with those reached by other jurisdictions which have addressed this issue. See State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1993-129; Florida Professional Ethics Committee, Opinion 94-7 (1995); and Opinion 72-41 (1973)