Can a retired lawyer be 'of counsel' to two different law firms at the same time, and what conflicts result?

Plain-English summary

The Board addressed whether a retired attorney could serve as "of counsel" to two firms formed when the attorney's old partnership dissolved. It noted that "of counsel" appears once in the former Ohio Code, in DR 2-102(A)(4), permitting the designation on letterhead where the lawyer has a continuing relationship with a firm other than as partner or associate. Drawing on ABA Formal Op. 90-357, the Board described the core characteristic as a continuing, close, regular, and personal relationship, more than a referral or one-time-advisor relationship.

Surveying other states (some allowing multiple "of counsel" relationships, Texas limiting it to two, Iowa to one) and the ABA's shift from its older two-firm and single-firm views, the Board concluded that an attorney may be "of counsel" to more than one firm if the requisite close and regular relationship can be maintained with each. The practical need for closeness limits the number; the controlling criterion is the quality of the relationship, not a fixed count. If the close, regular, and personal relationship does not exist, using the title is false or misleading under DR 2-101(A)(1).

The Board emphasized that the "of counsel" attorney must avoid conflicts and that, consistent with the ABA view, all disqualifications of each firm attach to the "of counsel" lawyer and, in turn, are imputed to each firm. The Board distinguished Opinion 89-35 (barring practice with more than one firm), which governs partner and associate relationships, not the distinct "of counsel" relationship.

Currency note

The Ohio Board flags this opinion as "Withdrawn in part" by the Board on April 4, 2013 in Opinion 2013-1. It interpreted the former Ohio Code of Professional Responsibility, which was superseded by the Ohio Rules of Professional Conduct effective February 1, 2007.

This opinion issued in 1997, before those changes. Subsequent rule amendments and the partial withdrawal may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current Ohio Rules of Professional Conduct before relying on any specific rule mentioned here.

Common questions

Q: Could a retired lawyer be "of counsel" to two firms at once?

A: Yes. The opinion concluded that a retired attorney could serve as "of counsel" to two firms formed by former partners, if a continuing, close, regular, and personal relationship was maintained with each.

Q: Was there a fixed limit on the number of "of counsel" firms?

A: No fixed number. The opinion concluded that the controlling criterion was a close and regular relationship with each firm, which as a practical matter limits the number, rather than a set count.

Q: How did conflicts work across the firms?

A: The opinion concluded that an "of counsel" lawyer is treated as a member of each firm, so each firm's disqualifications attach to the lawyer and are imputed to every firm connected by the relationship.

Background and rules framework

The opinion interprets the former Ohio Code of Professional Responsibility: DR 2-102(A)(4) (the "of counsel" letterhead designation) and DR 2-101(A)(1) (false or misleading communications), together with the imputed-disqualification principles the Board drew from ABA Formal Op. 90-357.

Citations and references

Rules of Professional Conduct:

• Former Ohio Code of Professional Responsibility DR 2-102(A)(4), DR 2-101(A)(1)

Other opinions cited:

• ABA Formal Ops. 90-357, 330; ABA Informal Op. 1173; Ohio BPC Ops. 91-18, 90-03, 88-023, 89-35; Assn. of the Bar of the City of New York Op. 80-22; State Bar of Texas Op. 402; Iowa State Bar Ops. 87-9, 82-19

See also

• Ohio BPC Op. 1997-001: Practicing Under a Franchised Trade Name
• Ohio BPC Op. 1996-003: Inactive Attorney's Shares and Firm Name in an LPA

Source

• Landing page: https://ohioadvop.org/advisory-opinion-index/
• Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_97-002.pdf

Original opinion text

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

The Supreme Court of Ohio
BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE 41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105 (614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 97-2
Issued April 11, 1997

WITHDRAWN IN PART BY OPINION 2013-1 ON APRIL 4, 2013

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS: A retired attorney may serve as “of counsel” to two different law firms formed by the retired attorney’s former partners upon dissolution of their law partnership. An attorney who serves as “of counsel” to more than one firm must maintain a continuing, close, regular, and personal relationship with each firm and avoid conflicts of interest. An attorney who serves as “of counsel” is considered a member of a law firm for purposes of analyzing imputed disqualification questions. When an attorney serves as of counsel to more than one law firm, there is imputed disqualification that extends to all lawyers and firms connected by the “of counsel” relationship.

OPINION: This opinion addresses the propriety of a retired attorney serving as “of counsel” to two different law firms.

Is it proper for a retired attorney to serve as “of counsel” to two different law firms formed by the retired attorney’s former partners upon dissolution of their partnership.

The title “of counsel” is referred to only once in the Ohio Code of Professional Responsibility in DR 2-102(A)(4), a rule regulating letterhead. Under DR 2-102 (A)(4) “[a] lawyer may be designated “Of Counsel” on a letterhead if the lawyer has a continuing relationship with a lawyer or law firm, other than as a partner or associate.”

The “of counsel” title is commonly used to describe a retired partner of a firm who does not actively practice law, but remains associated with the firm for consultation. It is also used to describe other types of continuing relationships. See ABA Formal Op. 90-357 (1990) describing four patterns of the of counsel relationship: a part-time practitioner; a retired partner; a probationary partner-to-be; a lawyer with a permanent status in between those of partner or associate.

The core characteristic of the “of counsel” relationship is the continuing, close, regular, and personal relationship. The “of counsel” relationship is more than a referral relationship and more than a one-time advisor relationship. An attorney who serves as “of

counsel” to a law firm must maintain a close, regular, and personal relationship with the firm other than partner or associate. See ABA, Formal Op. 90-357 (1990), Ohio SupCt, Bd of Comm’rs on Griev & Disc, Ops 91-18 (1991), 90-03 (1990), 88-023 (1988). The issue of whether an attorney may establish multiple “of counsel” relationships has been addressed by other states, but not Ohio. Some states permit an attorney to be “of counsel” to more than one firm simultaneously. See Ass’n of the Bar of the City of New York, Op. 80-22 (undated); Connecticut Bar Ass’n, Op. 88-13 (1988); Bar Ass’n of Nassau County, Op. 88-46 (1988); Philadelphia Bar Ass’n, Op. 86-54 (1986) and 86-143 (1986). One state limits an attorney to serving as “of counsel” to only two firms. See State Bar of Texas, Op. 402 (1982). One state does not permit an attorney to serve as “of counsel” to more than one law firm. See Iowa State Bar Ass’n, Ops. 87-9 (1987) and 82- 19 (1982).

The ABA view is that an attorney may be “of counsel” to more than one firm. In Formal Opinion 90-357 (1990) the ABA committee stated that “[a] lawyer can surely have a close, regular, personal relationship with more than two clients; and the Committee sees no reason why the same cannot be true with more than two law firms.” That advice is a departure from its earlier views in Formal Op. 330 (1972) that an attorney may be “of counsel” to only two firms and Informal Op. 1173 (1971) that an attorney may not be “of counsel” to more than a single firm.

This Board’s view is that an attorney may be “of counsel” to more than one firm if the attorney can maintain the requisite continuing, close, regular, and personal relationship and otherwise comply with the Code of Professional Responsibility. However, as the ABA committee noted, “[t]here is, to be sure, some point at which the number of relationships would be too great for any of them to have the necessary qualities of closeness and regularity, and that number may not be much beyond two, but the controlling criterion is “close and regular” relationships, not a particular number.” See ABA, Formal Op. 90-357 (1990).

In expressing this view, the Board is not contradicting, overruling, or withdrawing the advice in Opinion 89-35 that “[a]n attorney at law may not practice with more than one legal professional association or law firm in Ohio at the same time.” That opinion applies to partnership and associate relationships. See Ohio SupCt, Bd Comm’rs on Griev & Disc, Op. 89-35 (1989). It does not govern “of counsel” relationships which are unique and distinct from that of partner or associate relationships.

Nevertheless, the attorney who serves as “of counsel” to more than one firm must be vigilant to avoid professional conflicts of interest and misconduct. The “of counsel” attorney must maintain the requisite continuing, close, regular, relationship with each firm he or she serves, which will in effect limit the number of “of counsel” relationships. If the close, regular, and personal relationship does not exist, then use of the title is false or misleading under DR 2-101(A)(1). The “of counsel” attorney must avoid conflicts of interest. This Board agrees with the ABA view, that “there is attribution to the lawyer who is of counsel of all the disqualifications of each firm, and correspondingly, attribution from the of counsel lawyer to each firm of each of those disqualifications.” ABA, Formal Op. 90-357 (1990).

In conclusion, this Board advises that a retired attorney may serve as “of counsel” to two different law firms formed by the retired attorney’s former partners upon dissolution of their law partnership. An attorney who serves as “of counsel” to more than one firm must maintain a continuing, close, regular, and personal relationship with each firm and avoid conflicts of interest. An attorney who serves as “of counsel” is considered a member of a law firm for purposes of analyzing imputed disqualification questions. When an attorney serves as of counsel to more than one law firm, there is imputed disqualification that extends to all lawyers and firms connected by the “of counsel” relationship.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, non-binding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Code of Professional Responsibility, the Code of Judicial Conduct, and the Attorney’s Oath of Office.