NYC-BAR July 15, 1996

Can a firm call a non-exclusive per diem lawyer an 'associate' or 'of counsel'?

Short answer: Not 'associate'; 'of counsel' depends on the relationship. The opinion concluded a lawyer engaged on a non-exclusive, per diem basis cannot be called an 'associate,' and may be called 'of counsel' only if there is a close, regular, and personal relationship with the firm.

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This page answers the general question as of 1996. Ezel answers yours: whether it's allowed on your facts, under the current New York Rules of Professional Conduct, with citations.

Disclaimer: Advisory only. Not binding precedent.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

A firm retained a lawyer on a per diem basis: the lawyer worked continuously and met with clients but did not work exclusively for the firm, spending only 10 to 15 hours a week on its matters. The firm asked whether it could call the lawyer an "associate" or, alternatively, "of counsel" on letterhead, in billing, and elsewhere.

The Committee concluded the lawyer could not be called an "associate." Drawing on courts and other authorities (including ABA 90-357), it explained that "associate" has acquired a settled meaning, a salaried lawyer-employee who is not a partner, so using it for a lawyer who does not work exclusively for the firm would be misleading under EC 2-13. The bar applied not only to letterhead and public communications but to billing and client meetings: calling the per diem lawyer an "associate" in those contexts would be false and misleading and would violate DR 1-102(A)(4).

The Committee concluded the lawyer might be "of counsel," but only if the relationship was close, continuing, regular, and personal, not a mere referral, occasional-consulting, or office-sharing arrangement (N.Y. City 1995-8 and others). Compensation method was irrelevant, and the lack of exclusivity was not itself a bar, since a lawyer may be "of counsel" to more than one firm. The Committee cautioned about the conflict consequences: "of counsel" relationships are treated as making the lawyer and firm a single unit for imputed-conflict purposes, and if the lawyer is "of counsel" to several firms, conflicts are imputed across all of them. Finally, if the lawyer was neither associate nor "of counsel," the firm had to satisfy DR 2-107(A)'s fee-division requirements and the Committee's "temporary lawyer" guidelines, including disclosing the temporary relationship and obtaining the client's consent (DR 5-107(A)(1); EC 2-22).

Currency note

This opinion was issued in 1996, before New York replaced the Code of Professional Responsibility (the Disciplinary Rules and Ethical Considerations cited here) with the New York Rules of Professional Conduct, effective April 1, 2009. 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: Can a firm call a per diem, non-exclusive lawyer an "associate"?

A: No. The opinion concluded that "associate" means a salaried lawyer-employee who works for the firm, so applying it to a non-exclusive per diem lawyer, including in billing and client meetings, is misleading and violates DR 1-102(A)(4).

Q: When can the lawyer be called "of counsel"?

A: The Committee concluded the "of counsel" title fits only where the relationship is close, continuing, regular, and personal, not a referral, occasional-consulting, or office-sharing arrangement.

Q: What conflict consequences follow from an "of counsel" label?

A: The opinion concluded that "of counsel" relationships are treated as one unit with the firm for imputed-conflict purposes, and a lawyer "of counsel" to several firms imputes each firm's conflicts to all of them.

Q: What if the lawyer is neither associate nor "of counsel"?

A: The Committee concluded the firm must then meet DR 2-107(A)'s fee-division conditions and the "temporary lawyer" guidelines, including disclosing the temporary relationship and obtaining client consent.

Background and rules framework

The opinion was decided under New York's then-governing Code of Professional Responsibility: DR 1-102(A)(4) (dishonesty/misrepresentation), DR 2-107(A) (division of fees with another lawyer), DR 5-107(A)(1) (client consent to participation/compensation), with ECs 2-13 and 2-22. The Model Rules analogues are Rule 7.5 (firm names and "of counsel"), Rule 7.1, Rule 1.5(e) (fee division), and Rule 1.10 (imputed conflicts).

Citations and references

Rules of Professional Conduct:

New York Code DR 1-102(A)(4), DR 2-107(A), DR 5-107(A)(1); ECs 2-13, 2-22 (Model Rules 7.5, 7.1, 1.5, 1.10 analogues)

Other opinions cited:

ABA 90-357; ABA 330 (1974); ABA 88-356; N.Y. City 1995-8; N.Y. City 1988-3, 1989-2; Illinois 657 (1980)

Source

Landing page: https://www.nycbar.org/reports/formal-opinion-1996-8-associates-of-counsel-relationships/

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