Can an Ohio lawyer be 'of counsel' to an out-of-state firm, or an out-of-state lawyer 'of counsel' to an Ohio firm?
Apply this to your situation
This page answers the general question as of 2004. Ezel answers yours: whether it's allowed on your facts, under the current Ohio Rules of Professional Conduct, with citations.
Currency note
This opinion was issued in 2004, before Ohio's adoption of the Ohio Rules of Professional Conduct (effective February 1, 2007). The Board flagged it as a "CPR Opinion" because it interprets the former Ohio Code of Professional Responsibility, since superseded. Firm names and letterhead and multijurisdictional practice are now addressed by Ohio Prof. Cond. R. 7.5 and 5.5. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or requirement mentioned here.
Plain-English summary
The Board addressed "of counsel" relationships that cross state lines. It concluded that an Ohio attorney who practices in an Ohio law firm may become "of counsel" to a lawyer or law firm in another state, provided the "of counsel" relationship does not violate the disciplinary rules or laws of that other state.
The Board reached the parallel conclusion for the inbound case. An out-of-state attorney, not licensed in Ohio but licensed in another state, may become "of counsel" to a lawyer or law firm in Ohio, provided the relationship complies with the disciplinary rules and laws of Ohio. In each direction, the permissibility of the relationship turns on the rules of the jurisdiction where the firm is located.
Common questions
Q: Can an Ohio lawyer be 'of counsel' to a firm in another state?
A: Yes. The opinion concluded an Ohio lawyer in an Ohio firm may become "of counsel" to an out-of-state lawyer or firm if the relationship does not violate that state's rules or laws.
Q: Can a lawyer licensed only in another state be 'of counsel' to an Ohio firm?
A: Yes. Per the opinion, an out-of-state attorney may become "of counsel" to an Ohio lawyer or firm if the relationship complies with Ohio's rules and laws.
Background and rules framework
The opinion interprets the former Ohio Code of Professional Responsibility provisions on firm names and letterhead designations (DR 2-102), as applied to "of counsel" status, with attention to the rules of the other jurisdiction involved. The current analogues are Ohio Prof. Cond. R. 7.5 (firm names and letterheads) and 5.5 (multijurisdictional practice) (Model Rules 7.5, 5.5).
Citations and references
Rules of Professional Conduct:
- Former Ohio Code of Professional Responsibility DR 2-102
- Current analogues: Ohio Prof. Cond. R. 7.5, 5.5 (Model Rules 7.5, 5.5)
See also
- Ohio BPC Op. 1988-023: Of Counsel and Dual-Profession Letterhead
- Ohio BPC Op. 1997-002: Retired Attorney 'Of Counsel' to Two Firms
- Ohio BPC Op. 1990-003: Senior Attorney 'Of Counsel' on Letterhead
Source
- Landing page: https://ohioadvop.org/advisory-opinion-index/
- Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op-04-011.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
65 SOUTH FRONT STREET, 5TH FLOOR, COLUMBUS, OH 43215-3431
(614) 387-9370 (888) 664-8345 FAX: (614) 387-9379
www.sconet.state.oh.us
OFFICE OF SECRETARY
OPINION 2004-11
Issued October 8, 2004
[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: An Ohio attorney who practices law in an Ohio law firm may
become “of counsel” to a lawyer or law firm in another state, provided the “of
counsel” relationship does not violate the disciplinary rules or laws of the other
state.
An out-of-state attorney, not licensed in Ohio but licensed in another state, may
become “of counsel” to a lawyer or law firm in Ohio, provided the “of counsel”
relationship complies with the disciplinary rules and laws of Ohio.
OPINION: This opinion addresses “of counsel” relationships of Ohio attorneys
with lawyers or law firms in other states.
Is it proper for an Ohio attorney who practices law in an Ohio law
firm to become “of counsel” to a lawyer or law firm in another state?
For purposes of this opinion, “ ‘firm’ or ‘law firm’ denotes a lawyer or lawyers in a
law partnership, professional corporation, sole proprietorship or other
association authorized to practice law; or lawyers employed in a legal services
organization or the legal department of a corporation or other organization.”
ABA, Model Rules of Professional Conduct, Terminology, Rule 1.0 (c). (The Ohio
Code of Professional Responsibility defines “law firm” but the definition does not
expressly include or exclude sole proprietorships. Law firm is defined, as
including “a legal professional association, corporation, legal clinic, limited
liability company, registered partnership, or any other organization under which
a lawyer may engage in the practice of law pursuant to the Supreme Court Rules
for the Government of the Bar of Ohio.” Ohio Code of Professional
Responsibility, Definitions.)
“Of Counsel” relationship
The “of counsel” relationship is not well defined. The only reference to “of
counsel” in the Ohio Code of Professional Responsibility, is in DR 2-102(A)(4), a
rule addressing letterhead. DR 2-102(A)(4) states: “A lawyer may be designated
“Of Counsel” on a letterhead if the lawyer has a continuing relationship with a
Op. 2004-11 2
lawyer or law firm, other than as a partner or associate.” There is no direct
reference to the “of counsel” relationship in the ABA Model Rules.
The “of counsel” relationship receives definition, in part, by what it is not. The
term “of counsel” does not describe a partner or associate or its equivalent in a
professional association, an attorney who is a mere forwarder or receiver of
clients, an attorney who provides an occasional collaboration, or an outside
consultant. See ABA, Formal Op. 90-357 (1990).
The core characteristic of an “of counsel” relationship is a “close, regular,
personal relationship.” See ABA, Formal Opinion 90-357 (1990). Four principal
patterns of the “of counsel” relationship are described.
1. “[A] part-time practitioner who practices law in association
with a firm, but on a basis different from that of the
mainstream lawyers in the firm.”
2. “[A] retired partner of the firm who, although not actively
practicing law, nonetheless remains associates with the firm
and available for occasional consultation.”
3. “[A] lawyer who is, in effect, a probationary partner-to-be:
usually a lawyer brought into the firm laterally with the
expectation of becoming partner after a relatively short
period of time.”
4. “[A] permanent status in between those of partner and
associate . . . but having the quality of tenure, or something
close to it, and lacking that of an expectation of likely
promotion to full partner status.” [Footnote omitted.]
Id.
Another pattern of the “of counsel relationship” that exists in Ohio is that of an
attorney who practices law either as a sole practitioner or in a multi-lawyer firm,
but who has a continuing relationship with another lawyer or law firm and who is
available to provide assistance when needed.
Thus, generally, the “of counsel” relationship describes a link between a lawyer
and another lawyer or law firm. The link is a continuing one arising from a close,
regular, and personal relationship. The link does not describe a relationship of
partner or associate or its equivalent in a professional association or other multi-
lawyer firm, an attorney who is merely a forwarder or receiver of clients, or an
attorney who provides an occasional consultation.
“Of counsel” to another lawyer or law firm
The Ohio Code of Professional Responsibility places no restrictions on who may
serve as “of counsel” to a lawyer or law firm. In the absence of restrictions, the
Op. 2004-11 3
Board’s view is as follows: A member, associate, partner, shareholder, or an
attorney employee of a multi-lawyer law firm may serve as “of counsel” to
another lawyer or law firm. A sole practitioner may serve as “of counsel” to
another lawyer or law firm. Office sharing attorneys may serve as “of counsel” to
the lawyers or law firm with whom the office space is shared. But, regardless of
whether the “of counsel” attorney practices law as sole practitioner, as an office
sharing attorney, or as member, associate, partner, shareholder, attorney
employee of a multi-lawyer law practice, there must be a “continuing
relationship” that is “close, regular, and personal.”
The Board’s view, that a sole practitioner, office sharing attorney, member,
associate, partner, shareholder, or an attorney employee of a multi-lawyer law
practice may serve as “of counsel” to another lawyer or law firm, is different from
the view offered by the state bar association in Op. 02-04. The state bar ethics
committee advised that an attorney “may not be ‘of counsel’ to one firm while
being a partner or associate in another.” Ohio State Bar Assn., Op. 02-04 (2002).
The Board disagrees.
The state bar opinion, in part, relies upon the Board’s Opinion 89-35. In the
Board’s view, Opinion 89-35 does not support the bar association’s view. In Op.
89-35, the Board advised 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.”
Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline, Op. 89-35 (1989).
An “of counsel” attorney does not function or practice as a member of the law
firm to which he serves as “of counsel.” An “of counsel” relationship is sui
generis. An “of counsel” attorney is unique from a member in a law firm. [An
exception is that an “of counsel” attorney is considered a member of a law firm
for purposes of analyzing disputed disqualification questions arising as to
conflicts of interest. Imputation of disqualification protects a client from
representation by an attorney whose independent professional judgment might
be compromised by a conflict of interest. See Ohio Sup.Ct., Bd. Commrs.
Grievances & Discipline, Op. 97-2 (1997) (“An attorney who serves as ‘of counsel’
is considered a member of a law firm for purposes of analyzing imputed
disqualification questions.”) See, also, ABA, Formal Op. 90-357 (1990) (“[T]he of
counsel lawyer is ‘affiliated’ with the firm and its individual lawyers for purposes
of the general attribution of disqualifications under DR 5-105(D) of the Model
Code.”)
“Of Counsel” to more than one firm
The question of whether an attorney may be “of counsel” to more than one firm
has been addressed by this Board. “Of counsel” relationships with more than one
firm are permitted, but when an attorney serves as “of counsel” to more than one
law firm, disqualification is imputed to all lawyers and firms connected by the “of
counsel” relationship. See Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline,
Op. 97-2 (1997). See, also, ABA, Formal Op. 90-357 (1990).
“Of counsel” to a lawyer or law firm in another state
Op. 2004-11 4
The question of whether an Ohio attorney may be “of counsel” to a lawyer or law
firm in another state is before this Board for the first time.
The prevailing view in other states is that a lawyer in one state may be “of
counsel” to a lawyer in another state. See, e.g., Missouri Sup.Ct, Legal Ethics
Counsel, Informal Op. 20010080 (2001); Maryland State Bar Assn., Op. 97-2
(1997); Connecticut Bar Assn., Op. 94-27 (1994); Philadelphia Bar Assn., Op. 93-
17 (1993); District of Columbia Bar, Op. 197 (1989); Virginia State Bar, Op. 1282
(1989); State Bar of California, Op. 1986-88 (undated).
It is this Board’s view that an Ohio attorney or Ohio law firm may be “of counsel”
to a lawyer or law firm in another state. The basis for the Board’s view is that the
Ohio Code of Professional Responsibility does not prohibit such conduct, directly
or indirectly.
While Ohio’s Code does not prohibit an Ohio attorney or Ohio law firm from
being “of counsel” to a lawyer or law firm in another state, several disciplinary
rules are applicable to the conduct of an Ohio attorney who becomes “of counsel”
to a lawyer or law firm in another state.
Unauthorized practice of law
An “of counsel” attorney must not engage in the unauthorized practice of law.
DR 3-101(B) A lawyer shall not practice law in a jurisdiction where
to do so would be in violation of the regulations of the profession in
that jurisdiction.
Before becoming “of counsel” to a lawyer or law firm in another state, an Ohio
lawyer must learn whether such relationship is permitted in that state and what
constitutes the unauthorized practice of law in that state.
What constitutes the unauthorized practice of law in another state is determined
by that state. EC 3-9 reminds attorneys, “[r]egulation of the practice of law is
accomplished principally by the respective states.”
As to an out-of-state attorney becoming “of counsel” to an Ohio lawyer or law
firm, this Board’s view is that it is permitted. For example, an Ohio law firm may
have a multi-state client and need a close, regular, relationship with an out-of-
state lawyer as to the laws of that state.
Nevertheless, Ohio attorneys must not assist in the unauthorized practice of law.
DR 3-101(A) A lawyer shall not aid a non-lawyer in the
unauthorized practice of law.
What constitutes unauthorized practice of law within Ohio is a question of law.
Advisory authority as to what constitutes unauthorized practice of law by an out-
Op. 2004-11 5
of-state attorney lies with the Board of Commissioners on the Unauthorized
Practice of Law of the Supreme Court of Ohio.
Misleading communication
Ohio’s DR 2-102(A)(4) states, “[a] lawyer may be designated as “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.” Ohio’s DR 2-101(A)(1) requires that any
form of public communication shall not contain “any false, fraudulent,
misleading, deceptive, self-laudatory, or unfair statement.”
Whether another state requires the jurisdictional limitations of an Ohio attorney
who is “of counsel” to be listed on the law firm letterhead is a question for that
state. As to Ohio, it is the Board’s view that the jurisdictional limitation should
be included when listing an out-of-state attorney as “Of Counsel” on an Ohio law
firm’s letterhead. See, also, ABA, Formal Op. 90-357 advising that “[a]n
additional ethical consequence of the relationship implied by the term ‘of counsel’
is that in any listing, on a letterhead, shingle, bar listing or professional card,
which shows the of counsel lawyer’s name, any pertinent jurisdictional
limitations on the lawyer’s entitlement to practice must be indicated.”
Division of fees
Before becoming “of counsel” to a lawyer or law firm in another state, an Ohio
attorney must determine whether that state’s jurisdiction permits such
relationship and if so how the Ohio attorney may be compensated for his or her
services.
Across the nation, there is not a uniform view as to whether an “of counsel”
attorney is in the same firm or not in the same firm for purposes of fee division.
Some states have expressed the view that restrictions on fee division with
attorneys not in the same firm do not apply to “of counsel” attorneys. See, e.g.,
Maine Bd. Overseers of Bar, Op. 175 (2001), Assn. Bar City New York, Op. 1996-8
(1996), Texas State Bar, Op. 450 (1987), Virginia State Bar, Op. 442 (1983),
Alabama State Bar, Op. 81-536 (undated).
Other states have expressed the view that restrictions on fee division with
attorneys not in the same firm do apply to “of counsel” attorneys. See, e.g., State
Bar of California, Op. 1986-88 (1986), State Bar of South Dakota, Op. 90-9
(1990).
The Restatement view is that the rule regarding fee splitting between lawyers not
in the same firm “does not prevent a law firm, of whatever form, from dividing
income among its lawyers (including lawyers who are of counsel and temporarily
employed) in any lawful way provided in the firm agreement or by an ad hoc
arrangement.” Restatement (Third) of the Law Governing Lawyers § 47
Comment (g) (2000).
Op. 2004-11 6
This Board has never addressed whether an “of counsel” attorney is in the same
firm, or not in the same firm for purposes of fee division. DR 2-107(A) permits
division of fees among lawyers not in the same firm, but requires disclosure,
client consent, and other requirements as set forth in the rule.
The Board has advised that for purposes of DR 2-107(A), lawyers sharing office
space and lawyers maintaining separate law practices within the same building
are not in the same firm. Ohio Sup.Ct., Bd. Commrs. Grievances & Discipline,
Op. 2003-3 (2003). However, Opinion 2003-3 does not specifically address
office sharing attorneys serving as “of counsel” to a lawyer or law firm.
As to “of counsel” attorneys, the Board’s view is as follows: The restrictions in DR
2-107(A), as to division of fees with attorneys not in the same firm, do not apply
to attorneys properly designated as “of counsel” to a lawyer or law firm. The “of
counsel” designation indicates to the public that the attorney has a special
relationship with the law firm. Thus, to clarify Opinion 2003-3, the restrictions
of DR 2-107(A) do not apply to office sharing attorneys who are properly
designated as “of counsel” to a lawyer or law firm.
Thus, the Board’s view is that the Ohio Code’s provision, DR 2-107(A) restricting
the division of fees with another lawyer who is not a partner or associate is
inapplicable to attorneys who are properly designated as “of counsel” to a lawyer
or law firm. Fee agreements with “of counsel” attorneys must meet the general
requirements of DR 2-106 that a lawyer may not collect an illegal fee or a clearly
excessive fee. See DR 2-106.
Conclusion
An Ohio attorney who practices law in an Ohio law firm may become “of counsel”
to a lawyer or law firm in another state, provided the “of counsel” relationship
does not violate the disciplinary rules or laws of the other state.
An out-of-state attorney, not licensed in Ohio but licensed in another state, may
become “of counsel” to a lawyer or law firm in Ohio, provided the “of counsel”
relationship complies with the disciplinary rules and laws of Ohio.
Advisory Opinions of the Board of Commissioners on Grievances and
Discipline are informal, nonbinding 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.
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