When may a lawyer or law firm use the 'of counsel' title, and what conflicts does the relationship create?

Plain-English summary

Opinion E-93-1 (1993) asked under what circumstances lawyers and firms may use the designation "of counsel." The committee resolved the question by withdrawing its own earlier Formal Opinions E-86-10 and E-86-4 and Memorandum Opinions 4/78 A and 6/77 D, and adopting in their place American Bar Association Formal Opinion 90-357, which it reproduced. The core conclusion is that using "of counsel," or variants of the title, is permissible only where the relationship between the lawyers or firms is a close, regular, personal one and the title is not otherwise false or misleading.

Following the adopted ABA opinion, the committee explained that the defining characteristic of the title is a close, regular, personal relationship that is neither that of a partner (with shared liability and managerial responsibility) nor that of an associate (a regularly employed junior non-partner). It identified four valid patterns: a part-time practitioner associated with the firm; a retired partner who remains available for occasional consultation; a probationary partner-to-be; and a permanent status between partner and associate. The title and its specialty variants ("tax counsel," "antitrust counsel") must be confined to relationships involving frequent and continuing contact, not mere availability for occasional consultation, and a specialty designation also represents that the lawyer in fact has the claimed expertise. The committee reconsidered prior limits, concluding the title is not confined to a maximum of two firms and that a firm may be of counsel to another firm, while reaffirming that "of counsel" may not designate a single-case association, a forwarder-receiver arrangement, occasional collaboration among otherwise unrelated lawyers, or an outside consultant.

The committee stressed the conflict-of-interest consequences. An of-counsel lawyer or firm is "associated in" and "associated with" the firm for purposes of imputed disqualification under Model Rule 1.10, imputation from former government and judicial service under Rules 1.11(a) and 1.12(c), and the lawyer-as-witness rule in Rule 3.7(b). Because the association runs both ways, two or more firms sharing an of-counsel lawyer become effectively a single firm for attribution of disqualifications. The opinion also addressed when an of-counsel lawyer's name may appear in the firm name and required that any jurisdictional limits on the lawyer's right to practice be indicated in listings.

Currency note

This opinion was issued in 1993, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct (the state's Ethics 2000 update), and the ABA opinion it adopts predates the imputation and advertising amendments since made to the Model Rules. The firm-name and letterhead rules (SCR 20:7.5 and 20:7.1) and the imputation rules (SCR 20:1.10, 20:1.11, 20:1.12) have been revised since. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: When could a lawyer be designated "of counsel" to a firm?

A: Only for a close, regular, personal relationship. The committee, adopting ABA Op. 90-357, concluded the title fits a part-time practitioner, a retired partner available for consultation, a probationary partner-to-be, or a permanent between-partner-and-associate status, so long as the use is not misleading.

Q: What uses of "of counsel" were not permitted?

A: The committee concluded the title may not designate a relationship limited to a single case, a forwarder or receiver of business, occasional collaboration among otherwise unrelated lawyers, or an outside consultant.

Q: Does an of-counsel relationship create conflicts of interest?

A: Yes. The committee concluded the of-counsel lawyer is "associated" with the firm, so disqualifications are imputed both to and from the firm under Rule 1.10, with the effect that firms sharing an of-counsel lawyer are treated as a single firm for conflicts purposes.

Q: Did this opinion change earlier Wisconsin guidance?

A: Yes. The committee withdrew its earlier Formal Opinions E-86-10 and E-86-4 and Memorandum Opinions 4/78 A and 6/77 D, replacing them with the adopted ABA opinion.

Background and rules framework

The opinion adopts ABA Formal Opinion 90-357 and applies SCR 20:7.5 / Model Rule 7.5 (firm names and letterheads) and SCR 20:7.1 / Model Rule 7.1 (no false or misleading communications) as the textual basis for whether a particular use of the title is permissible. It applies SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts), SCR 20:1.11 and 20:1.12 / Model Rules 1.11 and 1.12 (former government and judicial service), and SCR 20:3.7 / Model Rule 3.7 (lawyer as witness) to the conflict consequences of the of-counsel relationship.

Citations and references

Rules of Professional Conduct:

• Wis. SCR 20:7.5 / Model Rule 7.5 (firm names and letterheads)
• Wis. SCR 20:7.1 / Model Rule 7.1 (communications concerning a lawyer's services)
• Wis. SCR 20:1.10 / Model Rule 1.10 (imputation of conflicts)
• Wis. SCR 20:1.11, 20:1.12 / Model Rules 1.11, 1.12 (former government and judicial service)
• Wis. SCR 20:3.7 / Model Rule 3.7 (lawyer as witness)

Other opinions cited:

• ABA Formal Op. 90-357 (use of the "of counsel" designation) (adopted by this opinion)
• ABA Formal Op. 330 (1972) and ABA Formal Op. 84-351 (1984) (prior treatments of "of counsel" and firm affiliation)
• Wis. Formal Ops. E-86-10 and E-86-4 and Memorandum Ops. 4/78 A and 6/77 D (withdrawn by this opinion)

See also

• ABA Formal Op. 90-357: Use of the "Of Counsel" Designation
• ABA Formal Op. 94-388: Relationships Among Law Firms

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-93-1.pdf