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| LEO NO | TOPIC NO | SUMMARY |
|---|---|---|
| 389 | 11 | A lawyer who is "of counsel" to a firm must be alert to the "enhanced conflict of interest potential inherent in the arrangement." (8/23/1980) |
| 442 | 11 | A lawyer who works part-time for a law firm may be listed as "of counsel." (12/7/1981) |
| 945 | 38, 11, 45 | Two firms may not characterize themselves as "of counsel" to each other when the firms in essence have created only a referral relationship. Among other things, the firms may not agree to a 10% "referral fee" between themselves. [Rule 1.5(e) does not require that a lawyer sharing in fees also share responsibility, thus allowing "referral fees" if the client consents after full disclosure.] (6/10/1987) |
| 1034 | 11, 19, 20, 55 | The Canons of Judicial Conduct govern the permissibility of a lawyer appearing before a judge who was formerly a partner in the law firm (reaffirming LEO 552). It is improper to list a Congressman (who is precluded from the practice of law) as "of counsel" to a law firm. (2/9/1988) |
| 1278 | 11, 20 | No lawyer in a firm (even those who are "of counsel" to the firm) may lobby before the General Assembly or other legislative body when another lawyer in the firm is an elected member of that body. (9/21/1989) |
| 1282 | 11 | A Virginia lawyer may be "of counsel" to Florida firm on trademark matters if the lawyer is "an integral part of the law firm's operation in the practice of law," but the lawyer's office may not be called the law firm's office because it suggests that the lawyer is a partner in the firm (citing ABA Formal Opinion 330). (9/21/1989) |
| 1293 | 11 | To be "of counsel" to a firm, a lawyer must have a "continuing close association" with the firm. A lawyer may have such a relationship with more than one firm, but both firms must be careful to avoid confidentiality problems or conflicts of interests. (10/19/1989) |
| 1342 | 11, 41 | A lawyer may include a non-Virginia lawyer as "of counsel" on the firm's letterhead, but the characterization must be accurate. Providing business advice and financial assistance to the firm does not create an "of counsel" relationship. (4/20/1990) |
| 1353 | 11, 57, 71 | An in-house lawyer may also be "of counsel" to a law firm. However, there must be full disclosure and consent of the corporation for the law firm to do any of the corporation's legal work (even if the "of counsel" lawyer will not share in any of the fees). Moreover, outside counsel should communicate with a company lawyer other than the in-house lawyer who is also "of counsel" to the firm. (6/13/1990) |
| 1467 | 11 | A law firm may act as "of counsel" to another law firm if there is "a requisite close, regular, personal relationship" between the firms. (6/23/1992) |
| 1554 | 11, 55 | A retired lawyer may be listed as "of counsel" to a firm even though the retired lawyer is not actively practicing law, as long as the lawyer "remains associated with the firm and available for occasional consultations." The designation would be improper if the retired lawyer's association "was limited to a pure business affiliation" or to "either the development of business or the management of the firm's business activities." The Bar quoted earlier LEOs as indicating that the "of counsel" relationship "turns on the actual practice of law and is not satisfied by a mere business or financial relationship with the firm, a sporadic affiliation over time, or the status of a forwarder or receiver of legal business." (10/22/1993) |
| 1735 | 8, 11, 38, 42, 45 | A law firm may employ independent contractor lawyers under the following conditions: whether acting as independent contractors, contract attorneys or "of counsel," the lawyers must be treated as part of the law firm for confidentiality and conflicts of interest purposes; the firm must advise clients of any "mark-up" between the amount billed for the independent contractor lawyers' services and the amount paid to them if "the firm bills the amount paid to the Attorney as an out-of-pocket expense or disbursement," but need not make such disclosure to the clients if the firm bills for the lawyers' work "in the same manner as it would for any other associate in the Firm" and the independent contractor lawyer works under another lawyer's "direct supervision" or the firm "adopts the work product as its own;" the independent contractor lawyers may be designated as "of counsel" to the firm if they have a "close, continuing relationship with the Firm and direct contact with the firm and its clients" and avoid holding themselves out as being partners or associates of the firm; the firm must disclose to clients that an independent contractor lawyer is working on the client's matter if the lawyers "will work independently, without close supervision by an attorney associated with the Firm," but need not make such disclosure if the "temporary or contract attorney works directly under the supervision of an attorney in the Firm;" the firm may pay a "forwarding" or "referral" fee to the independent contractor lawyers for bringing in a client under the new Rules. (10/20/1999) |
| 1759 | 7, 11, 18, 50, 68, 73 | A lawyer who owns a mediation company is "of counsel" to a law firm in which his/her spouse is a partner. After mediation of a domestic dispute, one of the parties asks an associate in the law firm to file for divorce on behalf of that party. The Bar holds that lawyers/mediators may not represent either party after they handle a mediation, even with the clients' consent (overruling earlier LEOs 1684, 590, 544 and 511). Because this specific disqualification applies only to the lawyer/mediator, an associate in the firm would not be disqualified based on the mediator's disqualification. However, the lawyer/mediator's duty of confidentiality arising from the mediation also disqualifies that lawyer, and is imputed to the firm to which the lawyer/mediator is "of counsel" (although client consent can cure this conflict). If there were no connection between the lawyer/mediator and the law firm, lawyers practicing in the firm would not be disqualified from representing the party in the divorce as a result of the spousal relationship to the mediator. (2/4/02) [Rule 1.10 now imputes the individual's disqualification to the entire law firm, as explained in Virginia LEO 1826.] (2/4/2002) |
| 1813 | 1, 11, 13, 82 | Law firms may use the term "affiliated" or "associated" in describing their relationship, as long as one firm is "closely associated or connected with the other lawyer or firm in an ongoing and regular relationship." The terms are analogous to the "of counsel" relationship, which "must be close and regular, continuing and semi-permanent, and not merely that of a forwarder-receiver of legal business." It may be necessary for the law firms to use "more descriptive language" if the relationship between them involves one firm's limited availability to handle certain types of matters, or availability to handle matters in another state. Law firms using these terms must also ordinarily handle conflict as if they were one single firm. (3/16/2005) |
| ABA-1506 | 11 | A lawyer may be "of counsel" to a firm even if the lawyer shares in the general office overhead. (3/5/1984) |
| ABA-357 | 11 | A lawyer or a law firm may be "of counsel" to another law firm as long as there is a close, regular, personal relationship with the firm. (5/10/1990) |
| ABA-388 | 13, 11, 45 | Describing relationships between law firms using terms like "network", "alliance", "correspondent", "affiliate" or "associate", without more, tends to mislead. If such a relationship would be relevant to a prospective client, the lawyer could include such a description in a retainer letter with such a client. Clients must be advised of relationships among firms (such as "of counsel" relationships) that might create a conflict of interests. (12/5/1994) |
