147 N.J.L.J. 979
February 24, 1997
6 N.J.L. 475
February 24, 1997
OPINION 21
Of Counsel
Questions concerning the definition of the ubiquitous and
ambiguous term "Of Counsel" are being asked with increasing
frequency, not only in inquiries submitted to this Committee, but
of the Ethics Hotline as well. Based upon the inquiries the
Committee has received, it is clear that the term means different
things to different people and that perplexity rather than
certainty is the norm.
Part of the problem lies in the fact that no Rule of
Professional Conduct addresses the of counsel relationship
directly. The subject is addressed only generally by RPC 7.5(a),
under which a lawyer is prohibited from using a firm name,
letterhead, or other professional designation that violates RPC
7.1(a)(1); that is, a designation that is false or misleading. RPC
7.5(d), in turn, provides that "[l]awyers may state or imply that
they practice in a partnership only if the persons designated in
the firm name and the principal members of the firm share in the
responsibility and liability for the firm's performance of legal
services." The rule simply does not mention or discuss the of
counsel relationship. In comparison, DR 2-102 of the Model Code of
Professional Responsibility provides, in pertinent part, that "[a]
lawyer may be designated 'Of Counsel' on a letterhead if he has a
continuing relationship with a lawyer or law firm, other than as a
partner or associate."
The Advisory Committee on Professional Ethics, which had
jurisdiction over issues concerning attorney advertising and
solicitation prior to our existence, addressed this relationship in
three published opinions. In Opinion 443, 104 N.J.L.J. 561 (1979),
the ACPE held that there was no legal or ethical prohibition
against a lawyer, including a retired judge, acting of counsel to
more than one firm, provided that the association complied with all
applicable disciplinary rules.
In Opinion 444, 104 N.J.L.J. 567 (1979), the ACPE determined
that two partners in a firm could appear as of counsel on the
letterhead of a sole practitioner whose office was located in
another county, and that the sole practitioner's name could appear
on their letterhead in the same capacity as well. In arriving at
this decision, the Committee assumed that the attorneys designated
as of counsel would be available to clients of the separate firms
and that any division of fees would not offend the then applicable
disciplinary rules. Since the proposed designation appeared to
accurately portray the relationship to the public and was in no way
misleading, it was deemed to be proper.
However, in Opinion 522, 112 N.J.L.J. 384 (1983), the ACPE
denied a New Jersey firm's request to list a Pennsylvania law firm
on its letterhead as of counsel because the relationship between
the firms was one of each firm referring legal matters to the
other. The Committee held that listing the Pennsylvania firm as of
counsel would be misleading by indicating that the out-of-state
firm had some relationship with the New Jersey firm, which was not
the case. The Committee could see "no valid reason for attorneys
to include on their letterheads referral attorneys or firms ... to
whom they refer legal matters."
The American Bar Association has directly addressed the
relationship and defined it as one where there will be "a close,
regular, personal relationship; but a relationship which is neither
that of a partner (or its equivalent, a principal of a professional
corporation), with the shared liability and/or managerial
responsibility implied by that term; nor, on the other hand, status
ordinarily conveyed by the term 'associate,' which is to say a
junior non-partner lawyer, regularly employed by the firm." ABA
Formal Opinion 90-357 (1990). Consultation or collaboration on an
occasional basis is not sufficient. Ibid.
Ethics committees in other states have similarly described the
of counsel relationship as being "close, ongoing, regular, and
involving frequent contact for the purpose of providing
consultation and advice. The of counsel lawyer must be more than
an outside consultant, or an adviser on only one case, or a mere
forwarder or receiver of legal business." "Of Counsel," ABA/BNA
Lawyers' Manual on Professional Conduct, §91:502 (1990), citing to
Arizona Ethics Opinion 87-24 (1987); Michigan Informal Ethics
Opinion CI-1167 (1987); Ohio (Supreme Court) Ethics Opinion 88-23
(1988); Pennsylvania Ethics Opinion 89-98; and Virginia Ethics
Opinion 1293 (1989).
Of late, with downsizing, dissolutions and mergers occurring
with ever-increasing frequency, the nature of arrangements that
qualify as of counsel relationships seems to change on a daily
basis. Such arrangements include, but certainly are not limited
to, the following:
1. "Special" counsel who has developed an expertise in a
particular field of law, such as complex toxic tort or employment
discrimination law, and will provide advice to, or handle such
cases for, a law firm on a recurring basis.
2. A prospective partner, more often than not an attorney who
will be a lateral hire, who will handle matters for and work with
a law firm during an "engagement" period.
3. A retired judge or partner in a law firm who will be
providing advice and guidance to members of the firm on more than
an occasional or as needed basis.
4. An attorney who, due to personal or non-law related
business interests, will be practicing law part-time.
5. A permanent senior associate who is not on a partnership
track.
Although the possibilities are numerous, they all seem to have
a common thread. In each instance the attorney designated as of
counsel will have hands-on responsibility for, or will frequently
render advice on, a law firm's matters. Consequently, as long as
an attorney's relationship with a law firm is close, ongoing, and
involves frequent contact for the purpose of providing consultation
and advice, the attorney may be designated as of counsel on the law
firm's letterhead, business cards, advertisements and related
communications.