The \u201cof counsel\u201d relationship can offer many benefits to a lawyer, like:<\/p>\n
Lawyers often use the \u201cof counsel\u201d designation loosely and inappropriately. This article will discuss the ethical requirements for an of counsel relationship and some of the issues (ethical and otherwise) that might arise in such a relationship.<\/p>\n
RPC 34 rules that \u201can attorney may be designated as \u2018of counsel\u2019 to a North Carolina law firm if the attorney is licensed in North Carolina and will have a close, in-house association with the firm which involves no conflict of interest.\u201d\u00a0 But see RPC 85 below which removed the \u201cin-house association\u201d requirement.<\/p>\n
RPC 85 rules that an \u201cof counsel\u201d relationship may exist between lawyers practicing in different towns if the professional relationship is close, regular and personal and the designation is not otherwise false or misleading. RPC 85 removed the in-house association to the extent Rule 34 implied that lawyers and firms in different towns should not use the term \u201cof counsel\u201d to describe their relationship.<\/p>\n
RPC 25 rules that a North Carolina firm may not list a lawyer licensed elsewhere, but not in North Carolina, as \u201cof counsel\u201d or as a \u201cconsulting attorney.\u201d The State Bar felt that to permit this would be misleading. To list a person trained as an attorney and licensed elsewhere, but not in North Carolina, under a designation which would attempt to indicate his legal expertise would imply that he is a North Carolina attorney.<\/p>\n
ABA Formal Opinion 90-357 entitled \u201cUse of Designation \u2018Of Counsel\u2019\u201d is a thorough treatment of the subject and is excellent guidance for lawyers thinking about forming an \u201cof counsel\u201d relationship with another lawyer or law firm. ABA Formal Opinion 90-357 holds: The use of the title \u201cof counsel\u201d or variants of that title, in identifying the relationship of a lawyer or law firm with another lawyer or firm is permissible as long as the relationship between the two is a close, regular, personal relationship and the use of the title is not otherwise false or misleading.<\/p>\n
The key concepts are \u201cclose, regular, personal relationship\u201d and the title must not be \u201cfalse or misleading.\u201d<\/p>\n
ABA Formal Opinion 90\u2014357 identifies four principal patterns to which the \u201cof counsel\u201d designation appropriately applies:<\/p>\n
In addition, the \u201cof counsel\u201d designation can apply to a lawyer either to meet temporary staffing needs, provide special expertise not available in the firm or to the \u201cof counsel\u201d lawyer or because the law firm and the \u201cof counsel\u201d lawyer jointly represent clients on a recurring basis.<\/p>\n
ABA Formal Opinion 90-357 holds it is not ethically permissible to use the term \u201cof counsel\u201d to designate the following professional relationships: a relationship involving only an individual case; a relationship of forwarder or receiver of legal business; a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms; and the relationship of any outside consultant.<\/p>\n
None involve a \u201cclose, regular, personal relationship\u201d and are not ethically an \u201cof counsel\u201d relationship.<\/p>\n
Combining N.C. RPC 85 and ABA Formal Opinion 90-357, the ethical requirements for an \u201cof counsel\u201d relationship are: (1) the \u201cof counsel\u201d lawyer must be licensed in North Carolina; (2) there must be a close, personal association between the \u201cof counsel\u201d lawyer and the firm (The ABA terms it a close, regular and personal relationship); (3) the relationship must not involve conflicts of interest; and (4) the title must not be otherwise false or misleading.<\/p>\n
Lawyers interested in forming an \u201cof counsel\u201d relationship with another lawyer or law firm would be wise to consider the following issues: conflicts, advertising, fee-splitting, legal liability, and malpractice insurance.<\/p>\n
An \u201cof counsel\u201d lawyer and the firm must make sure there are no conflicts of interest that prevent the formation of the \u201cof counsel\u201d relationship. N.C. Rules of Prof\u2019l Conduct Rules 1.7 et seq. should be reviewed. Because conflicts of interest may arise during the relationship, conflicts must be continuously checked and dealt with, just as if the \u201cof counsel\u201d lawyer was a member of the law firm. In North Carolina, except in limited circumstances, a conflict involving one member of a firm is imputed to all members of the firm. (Rule 1.10). The same rule would likely apply to the \u201cof counsel\u201d lawyer and the law firm.<\/p>\n
ABA Formal Opinion 90-357 states the \u201cof counsel\u201d title must not be false or misleading. NC Rule 7.1(a) states: \u201cA lawyer shall not make a false or misleading communication about the lawyer or the lawyer\u2019s services.\u201d N.C. Rule 7.5(a) states: \u201cA lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.\u201d If the \u201cof counsel\u201d lawyer is providing legal services in his or her own law practice and not in connection with the firm to which he is \u201cof counsel,\u201d he should use his own stationary and not that of the firm. This will help avoid misleading his client into thinking that the lawyer has the backing of the firm on this legal matter. When working on matters in common with the law firm, he should use firm letterhead that confirms his \u201cof counsel\u201d status with the firm.<\/p>\n
Similarly, the \u201cof counsel\u201d lawyer and the firm must avoid anything that would mislead clients into thinking the \u201cof counsel\u201d lawyer and the law firm are more closely related than they are. Rule 7.5(e) states: \u201cLawyers may state or imply that they practice in a partnership or other professional organization only when that is the fact.\u201d This issue could arise where the \u201cof counsel\u201d lawyer and the law firm share office space.<\/p>\n
N.C. Rule 1.5(e) governing fee splitting between lawyers not in the same firm should include the \u201cof counsel\u201d relationship and should be permitted, subject to the requirements of Rule 1.5(e).<\/p>\n
The substantive law of malpractice applies to the \u201cof counsel\u201d relationship. The general rule is the \u201cof counsel\u201d lawyer is responsible for his own malpractice but is not vicariously liable for the firm\u2019s malpractice. The firm is liable for its malpractice and partners are vicariously liable for the malpractice of an \u201cof counsel\u201d lawyer acting within the actual or apparent scope of the firm\u2019s practice and for the firm.<\/p>\n
Both the law firm and the \u201cof counsel\u201d lawyer should contact their malpractice insurance carriers before entering into the relationship. Usually, the \u201cof counsel\u201d lawyer should be added to the law firm\u2019s malpractice policy. The \u201cof counsel\u201d lawyer should be required to maintain his or her own malpractice policy, preferably with the same insurer. If a retiring lawyer is assuming the title \u201cof counsel,\u201d the lawyer should discuss with his malpractice carrier whether \u201ctail coverage\u201d is necessary to protect himself from claims made after his policy expired but which arose from acts or omissions committed during the policy period.<\/p>\n
Finally, it would be wise to always have a written \u201cof counsel\u201d agreement establishing such things as status in the firm, duties, limitations on authority to act for and in the name of the firm, malpractice liability insurance, compensation, office use, benefits and termination.<\/p>\n
The post \u2018Of Counsel\u2019 Relationships Properly Understood<\/a> appeared first on Attorney at Law Magazine<\/a>.<\/p>\n The \u201cof counsel\u201d relationship can offer many benefits to a lawyer, like:<\/p>\n Lawyers often use the \u201cof counsel\u201d designation loosely and inappropriately. This article will discuss the ethical requirements for an of counsel relationship and some of the issues (ethical and otherwise) that might arise in such a relationship.<\/p>\n RPC 34 rules that \u201can attorney may be designated as \u2018of counsel\u2019 to a North Carolina law firm if the attorney is licensed in North Carolina and will have a close, in-house association with the firm which involves no conflict of interest.\u201d\u00a0 But see RPC 85 below which removed the \u201cin-house association\u201d requirement.<\/p>\n RPC 85 rules that an \u201cof counsel\u201d relationship may exist between lawyers practicing in different towns if the professional relationship is close, regular and personal and the designation is not otherwise false or misleading. RPC 85 removed the in-house association to the extent Rule 34 implied that lawyers and firms in different towns should not use the term \u201cof counsel\u201d to describe their relationship.<\/p>\n RPC 25 rules that a North Carolina firm may not list a lawyer licensed elsewhere, but not in North Carolina, as \u201cof counsel\u201d or as a \u201cconsulting attorney.\u201d The State Bar felt that to permit this would be misleading. To list a person trained as an attorney and licensed elsewhere, but not in North Carolina, under a designation which would attempt to indicate his legal expertise would imply that he is a North Carolina attorney.<\/p>\n ABA Formal Opinion 90-357 entitled \u201cUse of Designation \u2018Of Counsel\u2019\u201d is a thorough treatment of the subject and is excellent guidance for lawyers thinking about forming an \u201cof counsel\u201d relationship with another lawyer or law firm. ABA Formal Opinion 90-357 holds: The use of the title \u201cof counsel\u201d or variants of that title, in identifying the relationship of a lawyer or law firm with another lawyer or firm is permissible as long as the relationship between the two is a close, regular, personal relationship and the use of the title is not otherwise false or misleading.<\/p>\n The key concepts are \u201cclose, regular, personal relationship\u201d and the title must not be \u201cfalse or misleading.\u201d<\/p>\n ABA Formal Opinion 90\u2014357 identifies four principal patterns to which the \u201cof counsel\u201d designation appropriately applies:<\/p>\n In addition, the \u201cof counsel\u201d designation can apply to a lawyer either to meet temporary staffing needs, provide special expertise not available in the firm or to the \u201cof counsel\u201d lawyer or because the law firm and the \u201cof counsel\u201d lawyer jointly represent clients on a recurring basis.<\/p>\n ABA Formal Opinion 90-357 holds it is not ethically permissible to use the term \u201cof counsel\u201d to designate the following professional relationships: a relationship involving only an individual case; a relationship of forwarder or receiver of legal business; a relationship involving only occasional collaborative efforts among otherwise unrelated lawyers or firms; and the relationship of any outside consultant.<\/p>\n None involve a \u201cclose, regular, personal relationship\u201d and are not ethically an \u201cof counsel\u201d relationship.<\/p>\n Combining N.C. RPC 85 and ABA Formal Opinion 90-357, the ethical requirements for an \u201cof counsel\u201d relationship are: (1) the \u201cof counsel\u201d lawyer must be licensed in North Carolina; (2) there must be a close, personal association between the \u201cof counsel\u201d lawyer and the firm (The ABA terms it a close, regular and personal relationship); (3) the relationship must not involve conflicts of interest; and (4) the title must not be otherwise false or misleading.<\/p>\n Lawyers interested in forming an \u201cof counsel\u201d relationship with another lawyer or law firm would be wise to consider the following issues: conflicts, advertising, fee-splitting, legal liability, and malpractice insurance.<\/p>\n An \u201cof counsel\u201d lawyer and the firm must make sure there are no conflicts of interest that prevent the formation of the \u201cof counsel\u201d relationship. N.C. Rules of Prof\u2019l Conduct Rules 1.7 et seq. should be reviewed. Because conflicts of interest may arise during the relationship, conflicts must be continuously checked and dealt with, just as if the \u201cof counsel\u201d lawyer was a member of the law firm. In North Carolina, except in limited circumstances, a conflict involving one member of a firm is imputed to all members of the firm. (Rule 1.10). The same rule would likely apply to the \u201cof counsel\u201d lawyer and the law firm.<\/p>\n ABA Formal Opinion 90-357 states the \u201cof counsel\u201d title must not be false or misleading. NC Rule 7.1(a) states: \u201cA lawyer shall not make a false or misleading communication about the lawyer or the lawyer\u2019s services.\u201d N.C. Rule 7.5(a) states: \u201cA lawyer shall not use a firm name, letterhead, or other professional designation that violates Rule 7.1.\u201d If the \u201cof counsel\u201d lawyer is providing legal services in his or her own law practice and not in connection with the firm to which he is \u201cof counsel,\u201d he should use his own stationary and not that of the firm. This will help avoid misleading his client into thinking that the lawyer has the backing of the firm on this legal matter. When working on matters in common with the law firm, he should use firm letterhead that confirms his \u201cof counsel\u201d status with the firm.<\/p>\n Similarly, the \u201cof counsel\u201d lawyer and the firm must avoid anything that would mislead clients into thinking the \u201cof counsel\u201d lawyer and the law firm are more closely related than they are. Rule 7.5(e) states: \u201cLawyers may state or imply that they practice in a partnership or other professional organization only when that is the fact.\u201d This issue could arise where the \u201cof counsel\u201d lawyer and the law firm share office space.<\/p>\n N.C. Rule 1.5(e) governing fee splitting between lawyers not in the same firm should include the \u201cof counsel\u201d relationship and should be permitted, subject to the requirements of Rule 1.5(e).<\/p>\n The substantive law of malpractice applies to the \u201cof counsel\u201d relationship. The general rule is the \u201cof counsel\u201d lawyer is responsible for his own malpractice but is not vicariously liable for the firm\u2019s malpractice. The firm is liable for its malpractice and partners are vicariously liable for the malpractice of an \u201cof counsel\u201d lawyer acting within the actual or apparent scope of the firm\u2019s practice and for the firm.<\/p>\n Both the law firm and the \u201cof counsel\u201d lawyer should contact their malpractice insurance carriers before entering into the relationship. Usually, the \u201cof counsel\u201d lawyer should be added to the law firm\u2019s malpractice policy. The \u201cof counsel\u201d lawyer should be required to maintain his or her own malpractice policy, preferably with the same insurer. If a retiring lawyer is assuming the title \u201cof counsel,\u201d the lawyer should discuss with his malpractice carrier whether \u201ctail coverage\u201d is necessary to protect himself from claims made after his policy expired but which arose from acts or omissions committed during the policy period.<\/p>\n Finally, it would be wise to always have a written \u201cof counsel\u201d agreement establishing such things as status in the firm, duties, limitations on authority to act for and in the name of the firm, malpractice liability insurance, compensation, office use, benefits and termination.<\/p>\n The post \u2018Of Counsel\u2019 Relationships Properly Understood<\/a> appeared first on Attorney at Law Magazine<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":" The \u201cof counsel\u201d relationship can offer many benefits to a lawyer, like: Flexibility in practice. Expertise sharing and mentorship. Enhanced reputation and networking. Financial benefits. Limited administrative responsibilities. Continued professional involvement. Transition phase to retirement. Lawyers often use the \u201cof counsel\u201d designation loosely and inappropriately. This article will discuss the ethical requirements for an of […]<\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[17],"tags":[],"class_list":["post-118175","post","type-post","status-publish","format-standard","hentry","category-legal_matters"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/118175","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=118175"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/118175\/revisions"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=118175"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=118175"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=118175"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}\n
North Carolina Ethics Opinions<\/strong><\/h2>\n
American Bar Association Ethics Opinion \u2013 ABA Formal Opinion 90-357<\/strong><\/h2>\n
Relationships Befitting the Title \u2018Of Counsel\u2019<\/strong><\/h2>\n
\n
Relationships Unsuitable for the Title \u2018Of Counsel\u2019<\/strong><\/h2>\n
Ethical Requirements for an \u2018Of\u00a0Counsel\u2019 Relationship<\/strong><\/h2>\n
Ethical Pitfalls to Avoid in an \u2018Of Counsel\u2019 Relationship<\/strong><\/h2>\n
Conflicts<\/strong><\/h2>\n
Advertising<\/strong><\/h2>\n
Fee Splitting<\/strong><\/h2>\n
Legal Liability<\/strong><\/h2>\n
Malpractice Insurance<\/strong><\/h2>\n
Risk Management Pointer<\/strong><\/h2>\n