WSBA 2000

Is an 'of counsel' lawyer treated as a member of the firm for fee-splitting under RPC 1.5(e)?

Short answer: The committee concluded that to use the 'of counsel' designation a lawyer must have a regular, frequent, and continuing relationship with the firm such that the lawyer is in fact a member; if so, a fee is not a division between lawyers in different firms and RPC 1.5(e)(2) does not apply. If the lawyer does not meet that test, the 'of counsel' label is inappropriate and any fee division is subject to RPC 1.5(e)(2).

Apply this to your situation

This page answers the general question as of 2000. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, 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 Not binding precedent.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) is the authoritative source for any reliance.

Plain-English summary

The inquiry asked whether a lawyer who is "of counsel" to a law firm is considered a member of the firm for purposes of fee splitting under RPC 1.5(e).

The committee concluded that, to use the "of counsel" designation, a lawyer must have a regular, frequent, and continuing relationship with the firm such that the lawyer is in fact a member of the firm. If the lawyer meets that test, there is no "division of a fee between lawyers who are not members of the same firm," and the requirements of RPC 1.5(e)(2) do not apply. If the lawyer does not meet that test, the "of counsel" designation is not appropriate, and any division of fees between the lawyer and another law firm is subject to the requirements of RPC 1.5(e)(2). The committee directed the inquirer to Formal Opinion 178 for a discussion of the appropriate circumstances in which the "of counsel" designation may be used.

Currency note

This opinion was issued in 2000, before the Washington State Bar Association's adoption of the 2006 revisions to the 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 Treat this page as historical context, not current guidance.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. Washington's RPC 1.5 (fees), including the fee-division provisions of subsection (e), was restructured in the 2006 revisions, so verify the current rule text before relying on it.

Common questions

Q: Does the RPC 1.5(e) fee-division rule apply between a firm and its 'of counsel' lawyer?

A: Not if the "of counsel" lawyer is in fact a member of the firm. The committee said that a regular, frequent, and continuing relationship makes the lawyer a member, so there is no division between lawyers in different firms.

Q: What makes someone properly 'of counsel'?

A: The committee said the lawyer must have a regular, frequent, and continuing relationship with the firm such that the lawyer is in fact a member, and it referred the inquirer to Formal Opinion 178.

Q: What if the lawyer is not really 'of counsel'?

A: Then the designation is inappropriate, and any division of fees between the lawyer and another firm is subject to the requirements of RPC 1.5(e)(2).

Background and rules framework

The opinion applied Washington RPC 1.5(e) (division of fees between lawyers who are not in the same firm), corresponding to ABA Model Rule 1.5(e). The committee tied the rule's applicability to whether the "of counsel" lawyer is genuinely a member of the firm, so that a true of-counsel relationship takes the payment outside RPC 1.5(e)(2).

Citations and references

Rules of Professional Conduct:

ABA Model Rule 1.5 (fees; division of fees between lawyers); Washington RPC 1.5(e), 1.5(e)(2)

Other opinions cited:

WSBA Formal Opinion 178 (appropriate use of the "of counsel" designation)

Source

Landing page: https://ao.wsba.org/print.aspx?ID=1095

Original opinion text

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

Advisory Opinion: 1901
Year Issued: 2000
RPC(s): RPC 1.5(e); Formal Opinion 178
Subject: Division of fees between law firm and "of counsel"

Is a lawyer who is "of counsel" to a law firm considered to be a member of the law firm for purposes of fee splitting pursuant to RPC 1.5(e)?

The committee opined that in order to use the "of counsel" designation, a lawyer must have a regular, frequent and continuing relationship with a law firm such that the lawyer is in fact a member of the law firm. If a lawyer meets that test then there would not be "[a] division of a fee between lawyers who are not members of the same firm" and the requirements of RPC 1.5(e)(2) are not applicable. But, if the lawyer does not meet that test, then the use of the "of counsel" designation is not appropriate and any division of fees between the lawyer and another law firm would be the subject of the requirements of RPC 1.5(e)(2). You are further directed to Formal Opinion 178 that contains a discussion of the appropriate circumstances in which the "of counsel" designation may be used.

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