When an Illinois lawyer moves from partner to a continuing relationship with the firm, may the firm use 'senior counsel,' 'special counsel,' or 'counsel' instead of 'of counsel' to describe the lawyer?

Plain-English summary

The inquiring lawyer asked whether, when a partner moves from partner status to a continuing relationship with the firm, the firm may use "senior counsel" instead of "of counsel" to describe the lawyer. The Committee reads Illinois Rule 7.5(a) together with Rule 7.1 (no false or misleading communications about the lawyer or the lawyer's services) and concludes that the terms "of counsel," "senior counsel," "special counsel," and "counsel" are interchangeable so long as the underlying relationship is close, regular, and personal.

The Committee aligns its analysis with ABA Formal Opinion 90-357 (May 1990), which identified four relationships that fit the "of counsel" designation: a part-time practitioner who practices in association with the firm; an inactive retired partner who may be available for consultation; a probationary partner; and a permanent firm lawyer with a status other than partner or associate. The Committee notes that prior ISBA opinions 22-04 (October 2022), 20-04 (May 2020), and 16-04 (October 2016) reach the same conclusion, requiring that the relationship be continuing and regular.

The Committee adds a conflicts caution. Per the opinion, a lawyer who is "of counsel," "counsel," "special counsel," or "senior counsel" to a firm is generally treated like a partner or associate for conflicts purposes. The result, drawing on ISBA Opinion 16-04, ABA Formal Opinion 90-357, and Restatement (Third) of the Law Governing Lawyers § 123, cmt. c(ii), is that where a lawyer holds one of these designations at more than one firm, those firms are considered a single firm for attribution of conflicts and disqualification.

In practice

Under this opinion, conduct in which an Illinois firm describes a lawyer with a close, regular, and continuing relationship as "senior counsel," "special counsel," "counsel," or "of counsel" is permitted under Rules 7.1 and 7.5(a). The Committee directs that lawyers without such a relationship should not be described using those terms.

Per the opinion, a lawyer who carries one of these designations at multiple firms triggers single-firm treatment for conflicts purposes. Firms entering such an arrangement and the prospective lawyer take on the conflicts and disqualification consequences that flow from being treated as a single firm.

Common questions

Q: Are "senior counsel," "special counsel," and "counsel" interchangeable with "of counsel" under Illinois rules?

A: Per the opinion, yes for relationships that are close, regular, and personal. The Committee draws on ABA Formal Opinion 90-357's observation that the four titles are common and permitted alternatives to "of counsel."

Q: What kinds of relationships qualify?

A: The opinion cites the four ABA Formal Opinion 90-357 examples: a part-time practitioner who practices in association with the firm; an inactive retired partner available for consultation; a probationary partner often a lateral hire with an expectation of partnership; and a permanent firm lawyer whose status is other than partner or associate.

Q: What about a lawyer who is "senior counsel" to two or more firms?

A: The opinion concludes those firms are generally treated as a single firm for attribution of conflicts of interest and disqualification, citing ISBA Opinion 16-04, ABA Formal Opinion 90-357, and Restatement (Third) of the Law Governing Lawyers § 123, cmt. c(ii).

Q: May a firm use these titles for lawyers it merely refers cases to or works alongside occasionally?

A: Per the opinion, no. The Committee states that "lawyers without such a [close, regular, and continuing] relationship should not be described or identified using those terms."

Background and rules framework

The opinion interprets Illinois Rule 7.5(a) (firm name, letterhead, or professional designation must not violate Rule 7.1) and Rule 7.1 (no false or misleading communications about the lawyer or the lawyer's services). The Committee aligns the analysis with ABA Formal Opinion 90-357 (May 1990) and the Restatement (Third) of the Law Governing Lawyers §§ 9, cmt. f, and 123, cmt. c(ii). The prior ISBA opinions 22-04 (October 2022), 20-04 (May 2020), and 16-04 (October 2016) are consistent and treated as continuing authority.

Citations and references

Rules of Professional Conduct:

• Illinois Rule 7.1 (no false or misleading communications)
• Illinois Rule 7.5(a) (firm name and letterhead)

Other authorities:

• ABA Formal Opinion 90-357 (May 1990): scope of the "of counsel" designation.
• Restatement (Third) of the Law Governing Lawyers § 9, cmt. f (2000): customary use of "of counsel" suggesting substantial part-time association.
• Restatement (Third) of the Law Governing Lawyers § 123, cmt. c(ii) (2000): treatment of "of counsel" lawyers for conflicts attribution.
• Annotated Model Rules of Professional Conduct (10th ed. 2023) at 226.

Other opinions cited:

• ISBA Opinion 22-04 (October 2022): "of counsel" denotes a continuing and regular relationship.
• ISBA Opinion 20-04 (May 2020): "of counsel" relationship must be continuing and regular.
• ISBA Opinion 16-04 (October 2016): lawyer may be "of counsel" with a close and continuing relationship; conflicts-attribution consequence noted.

See also

• CA COPRAC Op. 2004-167: Firm Trade Names and Government Titles
• CA COPRAC Op. 2001-155: Law Firm Internet Website Advertising

Source

• Landing page: https://www.isba.org/ethics/opinions/2402