Can a lawyer who refers insurance-related work to a firm and does work for its clients be designated 'of counsel' to that firm?

Plain-English summary

The inquiring lawyer asked about using "of counsel" to identify his status with a new law firm he would work with from time to time, to whom he would refer legal business arising from his insurance work, and for whose clients he expected to do insurance work arising from their legal matters. The committee directed his attention to the fee-splitting restrictions in RPC 1.5 and the conflict-of-interest requirements in RPC 1.7.

The committee was of the opinion that, based on the facts presented, the use of the term "of counsel" was probably appropriate.

Currency note

This opinion was issued in 1990, before the Washington State Bar Association's adoption of the 2006 revisions to the Washington Rules of Professional Conduct. 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 Treat this page as historical context, not current guidance.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: Can a lawyer who refers work to a firm be called 'of counsel' to it?

A: Under this 1990 opinion, the committee was of the opinion that, on the facts presented, the "of counsel" designation was probably appropriate.

Q: What did the committee flag for the lawyer to watch?

A: The fee-splitting restrictions in RPC 1.5 and the conflict-of-interest requirements in RPC 1.7.

Background and rules framework

At the time of this opinion, Washington's RPC 1.5 governed fees, including division of fees, and RPC 1.7 governed conflicts of interest, the subjects the Model Rules place in Rules 1.5 and 1.7. The committee treated the "of counsel" designation as probably appropriate on these facts while signaling that the referral and shared-work arrangements still had to satisfy the fee-division and conflict rules.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 1.5 (fees; division of fees)
• ABA Model Rule 1.7 (conflicts of interest)
• Washington RPC 1.5, 1.7, 7.3

See also

• WA Ethics Op. 1343: Firms Identified as 'Affiliated With' Each Other
• WA Ethics Op. 1367: Lawyer-Witness Sharing in a Contingent Fee

Source

• Landing page: https://ao.wsba.org/print.aspx?ID=445

Original opinion text

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

The Committee reviewed your inquiry concerning the use of "of counsel" to identify your status with your new law firm with whom you will be working from time to time and to whom you will be referring legal business arising from your insurance work. In addition, you expect to do insurance work for some of the firm's clients arising from their legal work. The Committee directed me to point out to you the fee splitting restrictions in RPC 1.5 and also that you should be conscious of the conflict of interest requirements in RPC 1.7. The Committee was of the opinion that, based upon the facts presented in your inquiry, the use of the term "of counsel" was probably appropriate.