Can a New York firm call a lawyer "of counsel" if that lawyer lives and practices mainly in a foreign country?

Plain-English summary

The committee addresses whether a New York firm may give the "of counsel" title to a lawyer who is admitted in New York but lives and practices law mostly abroad. It concludes the designation is permissible subject to three conditions. First, the lawyer must have a "continuing relationship" with the firm as required by Rule 7.5(a)(4), which prior opinions describe as a "close, continuing, regular and personal" relationship other than that of partner or associate, with the lawyer available to the firm for consultation and advice on a regular and continuing basis.

The opinion explains that whether a continuing relationship exists is fact-specific and turns on a non-exclusive set of factors: whether the lawyer shares office space with the firm, is involved in the firm's day-to-day affairs and its cases, the frequency and nature of communications with the firm, the extent to which the firm's clients use the lawyer's services, and whether the relationship is so limited that it involves only business referrals or occasional consulting. No single factor is dispositive; relationships vary from firm to firm, and the absence of some factors (or presence of others) does not control.

Second, the title must not be false or misleading in other respects, consistent with the policy behind the of-counsel rules: protecting the public from being misled about the relationship between the firm and the lawyer. Third, under Rule 5.5(b), if the lawyer's practice in the foreign country constitutes the unauthorized practice of law there, the firm must not use the of-counsel designation; whether particular conduct is unauthorized practice is a question of substantive law outside the committee's jurisdiction. The opinion also notes, in a footnote, that of-counsel relationships are treated as a single unit for conflict-imputation purposes and that the firm bears supervisory responsibility for the of-counsel lawyer under Rule 5.1.

In practice

The opinion holds that, under the New York rules as they stood at the time, a foreign-based New York lawyer may be designated "of counsel" only if a genuine close, regular, and personal continuing relationship with the firm exists (Rule 7.5(a)(4)), the title is not otherwise misleading, and the lawyer's foreign practice is not unauthorized practice there (Rule 5.5(b)). Per the opinion, the continuing-relationship determination is fact-specific and rests on the multi-factor analysis the committee describes, with no single factor controlling.

Common questions

Q: Can our firm list a New York lawyer who lives abroad as "of counsel"?

A: Yes, the opinion concludes, so long as the lawyer maintains a close, regular, and personal continuing relationship with the firm, the title is not misleading, and the lawyer's overseas practice does not amount to unauthorized practice of law there.

Q: What makes a relationship a "continuing relationship" under Rule 7.5(a)(4)?

A: Per the opinion, it must be close, regular, and personal, with the lawyer available for consultation and advice on a regular and continuing basis. The committee lists factors (shared office space, involvement in the firm's cases and daily affairs, frequency of communication) but treats none as dispositive.

Q: Does the foreign location create a problem?

A: Only if the lawyer's practice in that country is the unauthorized practice of law there; in that case the opinion concludes Rule 5.5(b) bars the firm from using the of-counsel designation. Whether the practice is unauthorized is a substantive-law question the committee does not decide.

Background and rules framework

The opinion interprets New York Rule 7.5(a)(4) (firm names and the "of counsel" designation; Model Rule 7.5) together with Rule 5.5(b) (aiding the unauthorized practice of law; Model Rule 5.5). It draws the continuing-relationship standard from prior NYC Bar and NYSBA opinions and notes the conflict-imputation and supervisory consequences under Rule 5.1.

Citations and references

Rules of Professional Conduct:

• Model Rule 7.5 / NY RPC 7.5(a)(4) (firm names; "of counsel" designation)
• Model Rule 5.5 / NY RPC 5.5(b) (aiding unauthorized practice of law)

Other opinions cited:

• NYSBA Ethics Op. 955 (2013): firm may designate an out-of-state attorney "of counsel"; test is fact-specific
• NYC Bar Formal Op. 1995-8 (1995): "continuing relationship" must be close, regular, and personal
• NYSBA Ethics Op. 936 (2012): no fixed set of factors answers whether the relationship justifies the designation

See also

• ABA Formal Op. 01-423: Forming partnerships with foreign lawyers
• ABA Formal Op. 489: Notice when lawyers change firms
• NYC Bar Ethics Op. 2019-2: Use of a virtual law office by New York attorneys

Source

• Landing page: https://www.nycbar.org/reports/formal-opinion-2013-3-of-counsel-designation-for-new-york-attorney-practicing-law-in-a-foreign-country/
• Original PDF: https://www.nycbar.org/wp-content/uploads/2023/05/20072584-FormalOpinion2013-03OfCounselDesignation.pdf