When can a Pennsylvania lawyer be listed as "of counsel" to a law firm?

Plain-English summary

The opinion holds that the propriety of the "of counsel" designation "turns on the substance of the relationship, not the label alone." Drawing on ABA Formal Opinion 90-357, it concludes the designation is permissible "only when the lawyer and the firm share a 'close, regular, personal relationship' and the designation is not otherwise false or misleading." Occasional consultation or collaboration is generally insufficient, though daily contact is not required, and "an affiliation that amounts to no more than a referral relationship, or that involves only one case, does not merit 'of counsel' designation."

By definition, the opinion explains, an "of counsel" relationship "cannot be considered a partnership," because Rule 1.0(g) defines a partner as an equity owner or shareholder. Because the common understanding is that an unqualified name on a firm's letterhead signifies a partner, shareholder, associate, or employee, the opinion concludes it would be misleading under Rule 7.1 to list an of-counsel lawyer without clearly identifying that distinct status, or to include such a lawyer's name in the firm name (unless that lawyer was a former name partner winding down practice before retirement).

For conflict purposes, the opinion states that "for purposes of conflict analysis, an 'of counsel' lawyer is considered 'associated in a firm' within the meaning of Rule 1.10." Concurrent conflicts under Rule 1.7 and former-client conflicts under Rule 1.9 are reciprocally imputed between the lawyer and the firm, with screening available under Rule 1.10(b) where the conflict arises from a prior firm affiliation. The opinion notes that, following the ABA, there is no fixed numerical cap on of-counsel relationships, but the close-relationship requirement and the reach of imputation across affiliated firms practically limit how many can be maintained. On compensation, the opinion concludes "the method of compensation is not relevant to determining whether an affiliation may be designated as 'of counsel,'" and fee division with an of-counsel lawyer treated as outside the firm is governed by Rule 1.5(e). It also flags that special care is required for former judges and public officials so the designation does not imply an ability to influence, and that upon termination current clients must be promptly notified and left free to choose counsel.

In practice

Under this opinion, a Pennsylvania lawyer may use the "of counsel" title only where the relationship with the firm is close, regular, and personal, and must present the designation on letterhead, websites, and marketing so it is not false or misleading about the lawyer's status. The opinion holds that an of-counsel lawyer is treated as associated in the firm for conflicts, so the firm's and the lawyer's conflicts are imputed to each other, and that the method of compensation does not determine whether the designation is proper.

Common questions

Q: What relationship does "of counsel" require?

A: The opinion concludes it requires a "close, regular, personal relationship" with the firm; a referral relationship, a single case, or only occasional consulting does not qualify.

Q: Can an "of counsel" lawyer's name go in the firm name?

A: Generally no. The opinion concludes that would be misleading under Rule 7.1 unless the lawyer was a former name partner reducing practice before retirement.

Q: Do conflicts pass between the lawyer and the firm?

A: Yes. The opinion concludes an of-counsel lawyer is "associated in a firm" under Rule 1.10, so conflicts under Rules 1.7 and 1.9 are reciprocally imputed, subject to screening under Rule 1.10(b) for prior-firm conflicts.

Q: Is there a limit on how many firms a lawyer can be "of counsel" to?

A: The opinion follows the ABA in rejecting a fixed numerical cap, but notes the close-relationship requirement and conflict imputation across affiliated firms practically limit the number.

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 7.1 (no false or misleading communications about a lawyer's services), Rule 1.0(g) (definition of "partner"), and Rule 1.10 (imputation of conflicts), together with Rules 1.6, 1.7, and 1.9 (confidentiality and conflicts), Rule 1.5(e) (division of fees), and Rule 8.4(e) (implying ability to influence). These track ABA Model Rules of the same numbers. The opinion builds principally on ABA Formal Opinion 90-357.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 7.1; 1.0(g); 8.4(e); ABA Model Rules 7.1, 1.0, 8.4
• Pa.R.P.C. 1.6, 1.7, 1.9, 1.10; ABA Model Rules 1.6-1.10
• Pa.R.P.C. 1.5(e); ABA Model Rule 1.5(e)

Other opinions cited:

• ABA Formal Op. 90-357 (1990): foundational "of counsel" standard
• New York State Ethics Op. 793 (2006): multiple affiliations and imputed conflicts
• Ohio Supreme Court Ethics Op. 97-2 (1997): of counsel and firm-name limits

Secondary authority:

• Restatement (Third) of the Law Governing Lawyers § 9 cmt. f (2000)

See also

• ABA Formal Op. 489: Notice When Lawyers Change Firms
• ABA Formal Op. 507: Office Sharing Arrangements
• CA COPRAC Op. 2004-167: Firm Trade Names and Government Titles

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2026-100.pdf