Can a lawyer be 'of counsel' to two different law firms at the same time?
Apply this to your situation
This page answers the general question as of 2001. Ezel answers yours: whether it's allowed on your facts, under the current Massachusetts Rules of Professional Conduct, with citations.
Plain-English summary
A lawyer asked whether he could be "of counsel" to two different firms simultaneously. The committee analyzed the combined effect of Rule 7.1 (false or misleading communications) and Rule 7.5 (firm names and designations), drawing on its Opinion 82-10, which had held that calling a lawyer "of counsel" was deceptive unless the lawyer and firm had "continuous and regular dealings that involve the rendering of legal advice." Reaching the same conclusion under the current rules, the committee advised that being of counsel to two firms was not misleading so long as the lawyer had continuous and regular dealings constituting the performance of legal services for both, consistent with ABA Formal Opinion 90-357's description of the "close, regular, personal relationship" at the core of the of-counsel status.
The committee then addressed conflicts of interest under Rule 1.10. Because the of-counsel designation indicated an ongoing relationship with each firm, the committee concluded that it fell within an "association in a firm," so conflicts had to be checked as though the two firms were one: whenever anyone in either firm took on a new matter, both firms' conflict databases had to be searched, with screening permitted only to the limited extent allowed by Rule 1.10(d). It cited Cinema 5, Ltd. v. Cinerama, Inc., where two firms sharing a common partner were treated as one for disqualification.
The committee further concluded that treating the two firms as one triggered a disclosure duty. Because clients of either firm would ordinarily not expect any involvement with the other firm, the committee reasoned that clients of both firms had to be told of the affiliation and its consequences, grounding the duty in Rule 1.10's loyalty rationale and Rule 1.4(b)'s requirement to explain a matter enough for informed client decisions. It added that the consequences of dual affiliation suggested such an arrangement might be problematic unless the two firms were prepared to assume an affiliated status, offering examples (an of-counsel lawyer to two family members' practices, or to two small specialty firms in different parts of the state) where it might work.
Currency note
This opinion was issued in 2001, before Massachusetts's adoption of the 2015 revisions to the Rules of Professional Conduct. 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.
Common questions
Q: Could a lawyer hold an of-counsel position with two firms at once?
A: The committee concluded yes, provided the lawyer performed legal services for both firms on a regular and continuous basis, so that the designation was not misleading under Rules 7.1 and 7.5.
Q: How did that affect conflict checking?
A: The committee concluded the two firms had to be treated as one under Rule 1.10, so a new matter at either firm required checking both firms' conflicts, with screening allowed only to the limited extent in Rule 1.10(d).
Q: Did clients have to be told?
A: Yes. The committee concluded that because the firms were treated as one, clients of both firms had to be informed of the affiliation and its consequences, drawing on Rule 1.10 and Rule 1.4(b).
Background and rules framework
The opinion interpreted Mass. R. Prof. C. 7.1 (communications about a lawyer's services) and 7.5 (firm names and designations) on the propriety of the "of counsel" label, and Mass. R. Prof. C. 1.10 (imputed disqualification) and 1.4(b) (communication) on the conflicts and disclosure consequences. The rules corresponded to the Model Rules of the same numbers as they stood at the time.
Citations and references
Rules of Professional Conduct:
- Model Rule 7.1 / Mass. R. Prof. C. 7.1 (false or misleading communications)
- Model Rule 7.5 / Mass. R. Prof. C. 7.5 (firm names and designations)
- Model Rule 1.10 / Mass. R. Prof. C. 1.10 (imputed disqualification; limited screening under 1.10(d))
- Model Rule 1.4 / Mass. R. Prof. C. 1.4(b) (communication necessary for informed decisions)
Cases:
- Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384 (2d Cir. 1976) (two firms with a common partner treated as one for disqualification)
Other opinions cited:
- MBA Opinion 82-10 ("of counsel" requires continuous and regular dealings)
- ABA Formal Opinion 90-357 (core characteristics of the of-counsel relationship)
- NYC Bar Opinions 1995-8 and 2000-4 (affiliated firms treated as one unit; disclosure)
See also
- MA Bar Ethics Op. 02-1: Lawyer for co-executors asked to handle one spouse's divorce
- MA Bar Ethics Op. 02-2: Representing rival developers at a zoning board
Source
Get today's answer for your situation
You just read a 2001 opinion on this question. Ezel checks the current Massachusetts Rules of Professional Conduct and answers your specific situation, with citations.
Opens in Ezel Pro. Every answer cites the rules it relies on.