Of Counsel Agreement Template

Of Counsel Agreement Template

ABA FORMAL OPINION 90-357 — FOUR PERMISSIBLE OF COUNSEL CATEGORIES:
The ABA has identified four principal patterns to which the "of counsel" designation appropriately applies:
1. Part-time practitioner — a lawyer affiliated with the firm on a part-time basis, practicing differently than mainstream firm lawyers
2. Retired senior attorney — a retired partner who remains associated and available for occasional consultation
3. Probationary partner-track — a lawyer on a probationary period before making partner
4. Permanent status between partner and associate — a senior lawyer without expectation of promotion to full partner

PROHIBITED USES: The "of counsel" designation is NOT appropriate for: a relationship involving only one case; a forwarder/receiver of business; occasional collaborative efforts among unrelated lawyers; or pure outside consultants. Improper use of the designation can constitute a false or misleading communication under ABA Model Rule 7.1.

IMPUTED CONFLICTS: Of counsel relationships create FIRM-WIDE conflict imputation. Conflicts of the of counsel attorney are imputed to the entire firm, and the firm's conflicts are imputed to the of counsel attorney. This is a critical due diligence requirement before entering into any of counsel arrangement.

Of Counsel Relationship Type Checklist (Select One)

☐ Type 1 — Part-Time Practitioner: Attorney practices on a regular part-time basis with the Firm; maintains ongoing, close, regular, personal relationship with Firm.

☐ Type 2 — Retired Senior Attorney: Former partner or senior attorney who has retired from full-time practice but remains associated for consultation and limited client matters.

☐ Type 3 — Probationary Partner-Track: Attorney is being considered for partnership; of counsel designation is transitional pending partnership decision.

☐ Type 4 — Permanent Non-Partner Status: Attorney has no expectation of becoming a partner but maintains a close, regular, personal relationship with the Firm.

Of Counsel Agreement

This Of Counsel Agreement ("Agreement") is entered into as of [__/__/____], by and between:

Firm: [________________________________] ("Firm"), a [LLP / General Partnership / Professional Corporation] organized in the State of [________________________________], with principal offices at [________________________________]

Of Counsel Attorney: [________________________________] ("Of Counsel"), licensed to practice law in [________________________________], with principal office/address at [________________________________]

Article 1 — Nature of Relationship

1.1 Of Counsel Designation. Of Counsel shall be listed on the Firm's letterhead, website, client communications, and directory listings as "Of Counsel" to the Firm. This designation reflects a close, regular, personal relationship with the Firm as described in ABA Formal Opinion 90-357.

1.2 ABA Category. The parties agree that this relationship falls within Category [____] described in ABA Formal Opinion 90-357 (see checklist above): [________________________________]

1.3 Not a Partner or Associate. Of Counsel is not a partner, shareholder, associate, or employee of the Firm unless separately agreed in writing. Of Counsel has no authority to bind the Firm contractually, financially, or professionally without express written authorization.

1.4 Not an Occasional Relationship. The parties intend this to be a close, regular, and personal relationship, not a one-case or occasional arrangement, consistent with the requirements of ABA Formal Opinion 90-357.

1.5 Independent Contractor Status. For compensation and tax purposes, Of Counsel shall be treated as an independent contractor (not an employee), unless a separate employment agreement is executed. Of Counsel shall receive Form 1099-NEC (not a W-2) for compensation paid under this Agreement.

Worker classification determination: Review IRS Rev. Rul. 87-41 factors and applicable state worker classification tests (CA ABC Test; IRS Common Law Test). Misclassification carries significant tax and employment law liability.

Article 2 — Scope of Services

2.1 Practice Areas. Of Counsel will provide legal services to the Firm and/or Firm clients in the following practice area(s):

• Primary: [________________________________]
• Secondary: [________________________________]
• Special Expertise: [________________________________]

2.2 Time Commitment. Of Counsel agrees to make available approximately [____] hours per week / [____] hours per month for Firm matters. ☐ Time commitment is flexible and determined on a matter-by-matter basis.

2.3 Client Development. Of Counsel ☐ will / ☐ will not participate in client development, marketing events, and business development activities on behalf of the Firm. ☐ Of Counsel is expected to originate matters, with compensation per Section 3.3.

2.4 Firm Administrative Participation. Of Counsel ☐ will / ☐ will not participate in Firm training sessions, practice group meetings, and mentoring activities.

2.5 Geographic Scope. Of Counsel shall provide services with respect to matters pending in the following jurisdictions: [________________________________]

Article 3 — Compensation

3.1 Compensation Structure (Select One):

☐ Hourly Rate: Of Counsel shall be compensated at $[____] per hour for time billed to Firm matters. Time is tracked in Firm's timekeeping system and billed at [____]% of Of Counsel's hourly rate.

☐ Percentage of Collected Fees: Of Counsel shall receive [____]% of collected fees on matters in which Of Counsel performed billable work, payable within [____] days of collection.

☐ Fixed Monthly Retainer: Of Counsel shall receive a fixed monthly retainer of $[________________________________], payable on the [____] day of each month, for approximately [____] hours of availability.

☐ Origination Credit: Of Counsel shall receive [____]% of collected fees on matters originated by Of Counsel.

☐ Hybrid: [________________________________]

3.2 Fee Sharing Disclosure. The parties acknowledge that fee sharing between the Firm and Of Counsel is governed by ABA Model Rule 1.5(e), which permits fee sharing between lawyers not in the same firm if:
(a) The division is in proportion to the services performed by each lawyer, OR the client agrees in writing to another arrangement;
(b) The total fee is reasonable; and
(c) Each lawyer assumes joint responsibility for the representation, OR the client agrees otherwise in writing.

The parties agree to comply with Rule 1.5(e) and applicable state rules, including client disclosure and consent requirements.

3.3 Expense Reimbursement. The Firm shall reimburse Of Counsel for the following pre-approved expenses:
☐ Out-of-pocket client-related expenses (deposed, filed, travel to court hearings)
☐ CLE attendance fees: up to $[____] per year
☐ Bar association dues in [________________________________]: $[____] per year
☐ Professional liability insurance (if separate policy maintained): $[____] per year
☐ Other: [________________________________]

3.4 Payment Schedule. Compensation shall be paid ☐ monthly / ☐ bi-monthly / ☐ within [____] days of collection, per the agreed compensation structure.

3.5 Tax Treatment. Of Counsel shall receive Form 1099-NEC for all compensation paid. Of Counsel is responsible for all self-employment taxes, estimated quarterly tax payments, and applicable taxes. Of Counsel acknowledges that no income tax withholding, FICA withholding, or benefits contributions are made by the Firm on Of Counsel's behalf unless separately agreed.

Article 4 — Conflicts of Interest and Confidentiality

4.1 Conflict Check — Critical Requirement. Before undertaking any new matter, Of Counsel shall:
(a) Disclose all existing and prospective clients to the Firm's conflicts coordinator;
(b) Complete the Firm's standard conflict check procedure;
(c) Disclose all prior representations, including all matters handled outside the Firm;
(d) Obtain Firm approval before commencing any new engagement.

4.2 Imputed Conflicts — ABA Model Rule 1.10. The parties acknowledge and agree that:

• Conflicts of interest of Of Counsel are imputed to the entire Firm;
• Conflicts of interest of the Firm are imputed to Of Counsel;
• This imputation applies as if Of Counsel were a partner of the Firm for conflict purposes;
• Lateral screening/ethical walls may reduce (but do not eliminate) imputed conflicts in some jurisdictions — verify applicable state rules.

4.3 Continuing Disclosure Obligation. Of Counsel shall promptly notify the Firm of any new client relationship, representation, business interest, or other matter that could create a conflict with any Firm client.

4.4 Confidentiality. Of Counsel agrees to maintain the confidentiality of all client information of the Firm and its clients, consistent with ABA Model Rule 1.6 and applicable state rules, both during and after the term of this Agreement.

4.5 Use of Firm Information. Of Counsel shall not use any client information, matter strategy, or confidential Firm information for any purpose other than the representation of the Firm's clients.

Article 5 — Malpractice Insurance

5.1 Coverage Arrangement (Select One):

☐ Firm Coverage: Of Counsel will be covered under the Firm's professional liability (malpractice) insurance policy for work performed on behalf of the Firm. The Firm shall provide Of Counsel with a certificate of insurance upon request.

☐ Separate Coverage Required: Of Counsel shall maintain a separate professional liability insurance policy with minimum limits of $[____] per occurrence / $[____] aggregate, naming the Firm as an additional insured. Of Counsel shall provide the Firm with proof of coverage annually.

☐ Both: Of Counsel maintains separate coverage AND is included under Firm's policy.

5.2 Tail Coverage. Upon termination of this Agreement, the Firm and Of Counsel shall ensure that tail coverage (Extended Reporting Endorsement) is in place for claims arising from work performed during the term of this Agreement.

5.3 Reporting Obligations. Of Counsel shall immediately notify the Firm and the applicable insurance carrier of any known or reasonably anticipated claims arising from work performed for Firm clients.

Article 6 — Letterhead, Directory, and Identification

6.1 Letterhead and Business Cards. ☐ Of Counsel's name will appear on the Firm's letterhead, website, and directory listings with the designation "Of Counsel." ☐ Of Counsel will use Firm-branded business cards. ☐ Of Counsel maintains separate business cards identifying the Of Counsel relationship.

6.2 Email. ☐ Of Counsel will use a Firm email address ([________________________________]@[________________________________]). ☐ Of Counsel will use a personal email address but include a signature block identifying the of counsel relationship.

6.3 Accuracy Requirement. The designation "Of Counsel" in all communications must accurately reflect the nature and extent of the relationship and must not be false or misleading under ABA Model Rule 7.1.

6.4 Social Media and Online Profiles. Of Counsel shall accurately represent the of counsel relationship on professional profile platforms (LinkedIn, Martindale, Avvo, etc.) and shall not characterize the relationship as a partnership or employment unless accurate.

Article 7 — Supervision and Professional Responsibility

7.1 Firm Supervisory Responsibility. Pursuant to ABA Model Rule 5.1, the Firm bears supervisory responsibility for ensuring that Of Counsel's conduct conforms to the Rules of Professional Conduct. A supervising partner shall be designated: [________________________________]

7.2 Of Counsel Autonomy. Of Counsel exercises independent professional judgment in the rendering of legal services, consistent with Of Counsel's independent contractor status and professional obligations.

7.3 File Management. Of Counsel shall follow the Firm's file management, billing, and administrative procedures for all Firm client matters. All client files and work product relating to Firm client matters are property of the Firm (unless the client directs otherwise).

7.4 Compliance with Firm Policies. Of Counsel shall comply with all applicable Firm policies, including data security, technology use, and billing guidelines.

Article 8 — ABA Formal Opinion 90-357 Compliance Checklist

Prior to listing the attorney as "Of Counsel," confirm the following:

☐ The relationship is ongoing and close, regular, and personal — not limited to one case
☐ The attorney is not merely a forwarder or receiver of business
☐ The attorney is not an independent consultant with no further relationship to the Firm
☐ Conflict checks have been completed and any conflicts resolved or waived
☐ Firm's malpractice insurance covers the of counsel relationship (or separate coverage obtained)
☐ Client disclosure obligations for fee sharing under Rule 1.5(e) have been identified and addressed
☐ Imputed conflict implications have been analyzed and addressed
☐ The Firm has confirmed that letterhead/directory listing accurately reflects the relationship
☐ Of Counsel's attorney registration number and bar status in [________________________________] confirmed as active

Article 9 — Non-Solicitation and Departure

9.1 Non-Solicitation of Clients. For [____] months following termination of this Agreement, Of Counsel agrees not to actively solicit clients of the Firm with whom Of Counsel had direct contact through this relationship. This provision must comply with ABA Model Rule 5.6 — it may not restrict the right to practice law or serve clients who freely choose to engage Of Counsel.

9.2 No Non-Compete. Consistent with ABA Model Rule 5.6, this Agreement contains no restriction on Of Counsel's right to practice law in any jurisdiction or geographic area following termination.

9.3 Notification to Clients. Upon termination, Of Counsel and the Firm shall jointly notify all clients served by Of Counsel of the change in the relationship and of the client's right to choose continued representation.

9.4 File Transfer. Upon termination, Of Counsel shall promptly transfer all client files and work product related to Firm clients to the Firm or to the client's designated attorney.

Article 10 — Term and Termination

10.1 Term. This Agreement is effective as of [__/__/____] and continues until terminated pursuant to this Article.

10.2 Termination Without Cause. Either party may terminate this Agreement without cause upon [____] days' written notice.

10.3 Termination With Cause. Either party may terminate this Agreement immediately upon written notice for cause, including:
(a) Material breach of this Agreement not cured within [____] days of written notice;
(b) Suspension or disbarment of Of Counsel's law license;
(c) Conviction of a felony or crime involving moral turpitude;
(d) Violation of applicable Rules of Professional Conduct;
(e) Discovery of a material, unresolvable conflict of interest; or
(f) Failure to maintain required professional liability insurance.

10.4 Obligations Upon Termination. Upon termination, Of Counsel shall:
(a) Return all Firm property, equipment, and client documents;
(b) Complete or transition all pending client matters per client's instructions;
(c) Provide access to all billing records, time entries, and matter files;
(d) Cease use of the Firm's name, email address, and letterhead.

Article 11 — Miscellaneous

11.1 Governing Law. This Agreement shall be governed by the laws of the State of [________________________________], subject to applicable professional responsibility rules.

11.2 Dispute Resolution. Disputes shall be resolved by ☐ mediation followed by binding arbitration in [________________________________] ☐ litigation in [________________________________].

11.3 Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the of counsel relationship and supersedes all prior agreements and understandings.

11.4 Severability. If any provision is invalid or conflicts with applicable professional responsibility rules, the remaining provisions remain in effect.

11.5 Amendment. This Agreement may be amended only by written instrument signed by both parties.

Signatures

LAW FIRM:
Firm Name: [________________________________]

By: [________________________________]
Title: [________________________________] (Managing Partner / Authorized Representative)
Date: [__/__/____]

OF COUNSEL ATTORNEY:
Signature: [________________________________]
Printed Name: [________________________________]
Bar Number / State: [________________________________]
Date: [__/__/____]

Sources: ABA Formal Opinion 90-357 (May 10, 1990); ABA Model Rules 1.5(e), 1.6, 1.7, 1.10, 5.1, 7.1, 7.5; IRC § 3401 (employee/contractor classification); IRS Rev. Rul. 87-41 (20-factor worker classification test); applicable state bar ethics opinions on of counsel relationships.