OHBPC February 8, 2008

What makes an 'of counsel' designation proper, and how does it affect firm names, fee division, and conflicts of interest?

Short answer: The opinion concluded that a lawyer may be 'of counsel' to a firm only where there is a continuing, close, regular, and personal relationship that is more than a partner/associate role, a mere forwarder, a one-time consultant, or a one-case tie. An 'of counsel' lawyer must be actively licensed, is treated as in the same firm for Rule 1.5(e) fee division, and has conflicts imputed; the lawyer's name may stay in the firm name only if already a name partner or shareholder, and an out-of-state of-counsel listing must state the jurisdictional limit.

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This page answers the general question as of 2008. Ezel answers yours: whether it's allowed on your facts, under the current Ohio 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 Not binding precedent.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 as a PDF) is the authoritative source for any reliance.

View original ethics opinion (PDF)

Plain-English summary

The Board addressed whether a lawyer in one firm may be "of counsel" to another, and what ethical consequences follow. It concluded the designation is proper only where the lawyer has a continuing relationship with the lawyer or firm, other than as a partner or associate or their equivalent. The core of that relationship is that it is close, regular, and personal, and is more than a mere forwarder or receiver of legal business, more than a one-time advisor or consultant arrangement, and more than a one-case relationship. Absent that continuing relationship, using the title "of counsel" is false or misleading under Rule 7.1. The Board, following ABA Formal Op. 90-357, recognized that the designation can fit several patterns, including a part-time practitioner, a retired partner available for consultation, a probationary partner-to-be, and a permanent non-partner/non-associate, as well as a sole practitioner or multi-lawyer-firm lawyer who maintains the requisite continuing relationship; a lawyer may be of counsel to more than one firm.

The Board then walked through the ethical implications. On registration, an of-counsel lawyer must hold active registration status; the designation is not available to inactive, retired, resigned, disbarred, or suspended lawyers. On firm names, under Rule 7.5(a) a firm may keep in its name the name of a lawyer who was already a name partner or shareholder and becomes of counsel, but under Rules 7.1 and 7.5(d) it may not add the name of an of-counsel lawyer who was never a name partner or shareholder, because that misleadingly implies a partnership or ownership that never existed. On letterhead, an out-of-state lawyer listed as of counsel to an Ohio firm should have the jurisdictional limitation stated, to avoid a misleading communication under Rule 7.1.

On fee division, the Board concluded, relying on Comment [2] to Rule 1.0, that an of-counsel lawyer is treated as a lawyer in the same firm, so the Rule 1.5(e) restrictions on dividing fees with lawyers outside the firm do not apply to a properly designated of-counsel lawyer. The Board also stated that conflicts of interest are attributed (imputed) within an of-counsel relationship, and that of-counsel relationships may exist between Ohio lawyers and firms and out-of-state lawyers and firms. The opinion noted an erratum correcting a reference from Comment [2] to Rule 1.5 to Comment [2] to Rule 1.0.

In practice

The opinion holds that, under the Ohio Rules of Professional Conduct as adopted effective February 1, 2007, "of counsel" is proper only where a continuing, close, regular, and personal relationship exists, and a lawyer using the title must hold active registration. Per the opinion, a firm may keep an of-counsel lawyer's name in the firm name only if that lawyer was already a name partner or shareholder; an out-of-state of-counsel listing should carry the jurisdictional limitation. The opinion treats a properly designated of-counsel lawyer as in the same firm for Rule 1.5(e) fee division and attributes that lawyer's conflicts of interest within the relationship.

Common questions

Q: What relationship is required to use "of counsel"?

A: The opinion concluded it must be a continuing, close, regular, and personal relationship other than as a partner or associate, and more than a forwarder, a one-time consultant, or a one-case tie; otherwise the title is misleading.

Q: Can an of-counsel lawyer's name be in the firm name?

A: Only sometimes. Per the opinion, a firm may keep the name of someone who was already a name partner or shareholder, but may not add the name of an of-counsel lawyer who never held that status.

Q: Do the Rule 1.5(e) fee-splitting limits apply to an of-counsel lawyer?

A: No. The opinion concluded an of-counsel lawyer is treated as in the same firm, so the restrictions on dividing fees with lawyers outside the firm do not apply.

Q: Are conflicts imputed in an of-counsel relationship?

A: Yes. The opinion stated that conflicts of interest are attributed within an of-counsel relationship, consistent with treating the lawyer as part of the firm.

Background and rules framework

The opinion interprets Ohio Prof. Cond. R. 7.5 (firm names and letterhead, including Comment [3] and Rule 7.5(a), (d)), R. 7.1 (false or misleading communications), R. 1.0(c) and Comment [2] (definition of "firm"), and R. 1.5(e) (division of fees), and notes imputation under R. 1.10 (Model Rules 7.5, 7.1, 1.5, 1.10). It traces the continuing-relationship requirement to former Code provision DR 2-102(A)(4) and to Gov. Bar R. VI on registration status.

Citations and references

Rules of Professional Conduct:

Ohio Prof. Cond. R. 7.5 (and Comment [3], R. 7.5(a), (d)); R. 7.1; R. 1.0(c) and Comment [2]; R. 1.5(e); R. 1.8(c) (Model Rules 7.5, 7.1, 1.0, 1.5)
Former Ohio Code of Professional Responsibility DR 2-102(A)(4)

Rules and authorities:

Gov. Bar R. VI(2)(C), VI(6)(D) (inactive and retired lawyers not to be listed as "of counsel")

Other opinions cited:

ABA Formal Op. 90-357 (1990): four principal patterns of the of-counsel relationship
Ohio BPC CPR Ops. 2006-2, 2004-11, 97-2, 91-18, 90-13, 90-3, 88-023; Withdrawn Op. 88-26: prior of-counsel guidance

Source

Landing page: https://ohioadvop.org/advisory-opinion-index/
Original PDF: https://www.ohioadvop.org/wp-content/uploads/2017/04/Op_08-001.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 2008-1
                                 Issued February 8, 2008

[Note the erratum on page 7, line 5, where Comment [2] to Rule 1.5 should be Comment [2] to Rule 1.0.]

SYLLABUS: A lawyer in a law firm may be “of counsel” to another law firm if the
requisite continuing relationship exists between the lawyer and the law firm. The
requisite continuing relationship is other than as a partner or associate or its
equivalent and is more than a mere forwarder or receiver of legal business, more
than a one-time advisor/consultant relationship, and more than a one-case
relationship. The “of counsel” relationship is continuing, close, regular, and
personal.

A lawyer who enters an “of counsel” relationship must be aware of the
accompanying ethical implications. A lawyer who serves as “of counsel” must
have an active license to practice law. A law firm may continue to include in the
firm name the name of a lawyer who was already a name partner or name
shareholder but who becomes “of counsel” to the law firm. A law firm may not
include in the firm name the name of an “of counsel” lawyer who was not already
a name partner or name shareholder of the law firm. The listing of an out-of-
state lawyer as “of counsel” to an Ohio law firm must include the jurisdictional
limitation of the “of counsel” lawyer on the letterhead. An “of counsel” lawyer is
considered a lawyer in the same firm for purposes of division of fees under Rule
1.5(e); therefore, the restrictions on division of fees with a lawyer not in the same
firm do not apply to a lawyer who is properly designated as “of counsel.” A
lawyer may serve as “of counsel” to more than one law firm. Conflicts of interest
are attributed in an “of counsel” relationship. “Of counsel” relationships may be
entered into between Ohio lawyers and law firms and out-of-state lawyers and
law firms.

OPINION: This opinion addresses a question regarding the “of counsel”
relationship and advises as to the ethical implications of the “of counsel”
relationship.

    May a lawyer in a law firm be “of counsel” to another law firm?

For purposes of this opinion, a law firm is defined as it is in Rule 1.0(c) of the
Ohio Rules of Professional Conduct. “‘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 private or
Op. 2008-1 2

public legal aid or public defender organization, a legal services organization, or
the legal department of a corporation or other organization.”

Characteristics of an “of counsel” relationship

“Of counsel” is a professional designation used by a lawyer to denote a
continuing relationship with a lawyer or law firm other than as a partner or
associate or the equivalent of a partner or associate.

A lawyer’s use of the professional designation “of counsel” is governed by the
Ohio Rules of Professional Conduct. A direct reference to “of counsel” appears
in Rule 1.8(c). Direct references also appear in Comment [3] to Rule 7.5 and
Comment [2] to Rule 1.0. Other rules, such as Rule 7.1 and Rule 1.5(e), contain
no direct reference to “of counsel” but are applicable to its proper use.

The references to “of counsel” in both the former Ohio Code of Professional
Responsibility and the current Rules are sparse at best. For this reason, Ohio
lawyers have sought and still seek the Board’s guidance as to the meaning and
use of the title “of counsel.” Over the last twenty years, the Board issued eight
opinions addressing various “of counsel” issues. See Ohio Sup.Ct, Bd Comm’rs
on Grievances & Discipline, CPR Op. 2006-2 (2006), CPR Op. 2004-11 (2004),
CPR Op. 97-2 (1997), CPR Op. 91-18 (1991), CPR Op. 90-13 (1990), CPR Op.
90-3 (1990), Withdrawn Op. 88-26 (1988), CPR Op. 88-023 (1988).

As with the use of any professional designation, the use of “of counsel” must not
be false or misleading. Rule 7.1 requires that “[a] lawyer shall not make or use a
false, misleading, or nonverifiable communication about the lawyer or the
lawyer’s services.” Rule 7.5, requires, in pertinent part, that “[a] lawyer shall not
use a firm name, letterhead, or other professional designation that violates Rule
7.1.”

As explained in Comment [3] to Rule 7.5 “[a] lawyer may be designated ‘Of
Counsel’ if the lawyer has a continuing relationship with a lawyer or law firm,
other than as a partner or associate.”

The requirement that an “of counsel” relationship be a continuing relationship
carried over into Ohio Rules of Professional Conduct upon Ohio’s February 1,
2007 transition from the Ohio Code of Professional Responsibility. In the section
on Comparison (of Rule 7.5) to former Ohio Code of Professional Responsibility,
the drafters of the Rules explain that “Comment [3] [to Rule 7.5] is substantially
the same as the Ohio [Code] provision on the ‘of counsel’ designation.” The
former Ohio Code provision, DR 2-102(A)(4), stated “[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.”
Op. 2008-1 3

Proper use of the professional designation “of counsel” requires a continuing
relationship of a lawyer with a lawyer or a law firm, other than as a partner or
associate or the equivalent of a partner or associate. Absent the requisite
continuing relationship with a lawyer or law firm, a lawyer’s use of the title “of
counsel” is false or misleading.

The requisite continuing “of counsel” relationship has as its core characteristic a
close, regular, and personal relationship other than as a partner or associate or
the equivalent of a partner or associate, that is more than a mere forwarder or
receiver of legal business, more than a one-time advisor/consultant relationship,
and more than a one-case relationship.

See, for example, CPR Op. 2004-11 similarly describing the core characteristic
as a “close, regular, personal relationship” and stating that “[t]he ‘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 also, for example, CPR Op. 97-2 describing the core characteristic of an “of
counsel” relationship as a continuing, close, regular, and personal relationship
that is more than a referral relationship, more than a one-time advisor
relationship, and different from a partner or associate relationship.

In summary, the “of counsel” designation describes a link between a lawyer and
a law firm. The link is a continuing one arising from a close, regular, and
personal relationship. The “of counsel” requisite continuing relationship is other
than as a partner or associate or its equivalent and is more than a mere
forwarder or receiver of legal business, more than a one-time advisor/consultant
relationship, and more than a one-case relationship.

Types of “of counsel” relationships

Different types of “of counsel” relationships may link a lawyer to a law firm.

An American Bar Association Standing Committee on Ethics and Professional
Responsibility described four principal patterns of the “of counsel” relationship in
ABA Formal Op. 90-357 (1990).

                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 associated with the firm
         and available for occasional consultation.”

Op. 2008-1 4

                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—akin to the category just described, 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.]

In CPR Op. 2004-11, the Board agreed with the ABA committee and still agrees
that the use of the designation “of counsel” is appropriate to describe these four
patterns—a lawyer who has a close, regular, and personal relationship with a law
firm as a part-time practitioner; a retired partner; a probationary partner-to-be; or
as permanent non-partner/non-associate.

Further, in CPR Op. 2004-11, the Board expressed the view that use of the title
“Of Counsel” is also appropriate to describe a lawyer 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. The Board advised: “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.’” This remains the Board’s view.

Accordingly, the Board’s advice as to the question raised is as follows. A lawyer
in a law firm may be “of counsel” to another law firm if the requisite continuing
relationship exists between the lawyer and the law firm.

Ethical implications of an “of counsel” relationship

A lawyer who enters an “of counsel” relationship must be aware of the
accompanying ethical implications.

Comment [2] to Rule 1.0 states: “Whether two or more lawyers constitute a firm
within division (c) [of Rule 1.0] can depend on the specific facts. For example, a
lawyer in an of-counsel relationship with a law firm will be treated as part of that
firm. On the other hand, two practitioners who share office space and
occasionally consult or assist each other ordinarily would not be regarded as
constituting a firm for purposes of fee division in Rule 1.5(e). The terms of any
Op. 2008-1 5

agreement between associated lawyers are relevant in determining whether they
are a firm, as is the fact that they have mutual access to information concerning
the clients they serve. Furthermore, it is relevant in doubtful cases to consider
the underlying purpose of the rule that is involved.”

Areas in which questions arise as to ethical implications of an “of counsel”
relationship include registration status; firm names and letterhead; division of
fees; conflicts of interest; multiple “of counsel” relationships; and “of counsel”
relationships with out-of-state lawyers or law firms.

Registration status

Because an “of counsel” lawyer remains available to provide legal assistance to
a law firm through the continuing close, regular, and personal relationship, the “of
counsel” lawyer must maintain active registration status.

“Of counsel” is not an appropriate designation for a lawyer with inactive
registration status. See Gov.Bar R. VI(2)(C) stating “[a]n inactive attorney shall
not be listed as “of counsel” or otherwise be represented as being able to engage
in the practice of law.”

“Of counsel” is not an appropriate designation for a lawyer whose application for
retirement or resignation from the practice of law has been granted. See, for
example, Gov.Bar R. VI(6)(D) stating “[a] retired attorney shall not be listed as “of
counsel” or otherwise be represented as able to engage in the practice of law in
Ohio.”

“Of counsel” is not an appropriate designation for an individual who is disbarred
or suspended from the practice of law.

Firm names and letterhead

A common question as to firm names is whether an “of counsel” lawyer’s name
may be included in the firm name. Firm names are governed by Rule 7.5. Rule
7.5(a) states in pertinent part that “[i]f otherwise lawful, a firm may use as, or
continue to include in, its name the name or names of one or more deceased or
retired members of the firm or of a predecessor firm in a continuing line of
succession.”

It is the Board’s view that pursuant to Rule 7.5(a), there is no ethical impediment
to a law firm continuing to include in the firm name, the name of a lawyer who
was already a name partner or name shareholder but who becomes “of counsel”
to the law firm. As already stated, a lawyer who wishes to be designated as “of
counsel” must maintain an active license to practice law and must maintain the
requisite continuing relationship.
Op. 2008-1 6

This view is consistent with the Board’s advice in CPR Op. 91-18 that “[a] law
firm may continue to include in its firm name, the name of a retiring partner of the
firm who becomes ‘of counsel’ to the firm.” The underpinning of that advice was
that it was not misleading to continue the name in the firm name.

In contrast, it is the Board’s view that pursuant to Rule 7.1 and Rule 7.5(d) there
are ethical impediments to a law firm including the name of an “Of Counsel”
lawyer in the firm name when the “of counsel” lawyer is not a lawyer who was
already a name partner or name shareholder of the law firm. Rule 7.1 prohibits
false or misleading communication. Further, Rule 7.5(d) requires that a “lawyer
may state or imply that they practice in a partnership or other organization only
when that is the fact.” If an “of counsel” lawyer is not a lawyer who was already a
name partner or name shareholder, the inclusion of that “of counsel” lawyer’s
name in the firm name is misleading and implies a partnership or ownership of
the firm which does not and never did exist.

With regard to letterhead, an issue is whether the listing of an out-of-state lawyer
as “of counsel” to an Ohio law firm must include the jurisdictional limitation of the
“of counsel” lawyer on the letterhead. Rule 7.1 prohibits misleading
communication. Thus, the Board’s view is that the jurisdictional limitation of an
“of counsel” lawyer should be included on an Ohio law firm’s letterhead when
listing an out-of-state lawyer as “of counsel.” This view is consistent with the
Board’s view in CPR Op. 2004-11, advising “that the jurisdictional limitation
should be included when listing an out-of-state attorney as “Of Counsel” on an
Ohio law firm’s letterhead.” Predecessor DR 2-101(A)(1), like Rule 7.1,
prohibited misleading communication.

Division of fees

With regard to division of fees, an issue is whether an “of counsel” lawyer is
considered a lawyer in the same firm for purposes of Rule 1.5(e). Rule 1.5(e)
requires that lawyers who are not in the same firm comply with strict
requirements set forth as to division of fees.

Comment [2] to Rule 1.0 in pertinent part states that “a lawyer in an of-counsel
relationship with a law firm will be treated as part of that firm. On the other hand,
two practitioners who share office space and occasionally consult or assist each
other ordinarily would not be regarded as constituting a firm for purpose of fee
division in Rule 1.5(e).”

Accordingly, the Board’s view is that an “of counsel” lawyer is considered a
lawyer in the same firm for purposes of division of fees; therefore, the restrictions
in Rule 1.5(e) on division of fees with lawyers not in the same firm do not apply to
a lawyer who is properly designated as “of counsel.” This view is consistent with
Op. 2008-1 7

the Board’s advice in CPR 2004-11 which was based upon application of DR 2-
107(A) which is substantively similar to Rule 1.5(e).

Conflicts of interest

An issue is whether conflicts of interest are attributed in an “of counsel”
relationship. Comment [2] to Rule 1.5 states that “a lawyer in an of-counsel
relationship with a law firm will be treated as part of that firm.” Accordingly, the
Board’s view is that conflicts of interest are attributed.

In CPR Op. 97-2, the Board agreed with the view expressed by the American Bar
Association ethics committee in ABA Formal Op. 90-357(1990) that “there is
attribution to the lawyer who is of counsel of all the disqualification of each firm,
and correspondingly, attribution from the of counsel lawyer to each firm of each
of those disqualifications.” See CPR Op. 97-2. The Board still agrees.

One conflict of interest rule specifically attributes a conflict of interest to an “of
counsel” lawyer. Rule 1.8(c) prohibits a lawyer from preparing “on behalf of a
client an instrument giving the lawyer, the lawyer’s partner, associate, paralegal,
law clerk, or other employee of the lawyer’s firm, a lawyer acting ‘of counsel’ in
the lawyer’s firm, or a person related to the lawyer any gift unless the lawyer or
other recipient of the gift is related to the client.” The general rule governing
imputation of conflicts of interest is Rule 1.10.

Multiple “of counsel” relationships

An issue is whether a lawyer may serve as “of counsel” to more than one law
firm. The Board’s view is that a lawyer may serve as “of counsel” to more than
one law firm. No rule prohibits more than one “of counsel” relationship.
Nevertheless, the requirement of maintaining the requisite continuing relationship
and the attribution of conflicts of interest place practical limitations upon the
number of “of counsel” relationships a lawyer should enter into.

See CPR Op. 97-2 expressing the view 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.”

There is nothing in the transition to the Ohio Rules of Professional Conduct from
the Ohio Code of Professional Responsibility that would change the Board’s
view. A lawyer who serves as “of counsel” to more than one firm must maintain a
continuing, close, regular, and personal relationship with each firm and avoid
conflict of interest.
Op. 2008-1 8

“Of counsel” relationship with an out-of-state lawyer or law firm

“Of counsel” relationships may be entered into between Ohio lawyers and law
firms and out-of-state lawyers or law firms. See CPR OP. 2004-11 advising that
“[a]n 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.”

Conclusion

In conclusion, the Board advises as follows. A lawyer in a law firm may be “of
counsel” to another law firm if the requisite continuing relationship exists between
the lawyer and the law firm. The requisite continuing relationship is other than as
a partner or associate or its equivalent and is more than a mere forwarder or
receiver of legal business, more than a one-time advisor/consultant relationship,
and more than a one-case relationship. The “of counsel” relationship is
continuing, close, regular, and personal.

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 Ohio Rules of Professional Conduct, the Ohio Code of Judicial
Conduct, and the Attorney’s Oath of Office.

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