147 N.J.L.J. 979
February 24, 1997
6 N.J.L. 475
February 24, 1997
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.