The of counsel designation can mean different things to different people. WIth no standard definition, the term applies to a variety of attorney/firm relationships. Some firms solicit of counsel arrangements to expand their practice areas or reach new clients. They do this by bringing on an of counsel attorney or by seeking the of counsel designations for themselves. Daily routines vary greatly because there is no single interpretation for these positions, so this article only provides a general overview of the of counsel classification.
The ABA defines of counsel
In Formal Opinion 90-357, the ABA Standing Committee on Ethics and Professional Responsibility considered the parameters of an “of counsel” relationship. It determined that an of counsel designation infers a close, continuous relationship between the firm and the attorney. The committee also provided four general situations where the term is commonly used:
- Retired lawyers who wish to continue a close relationship with the firm
- A lateral hire attorney who must successfully complete a probationary status before being elevated to partner
- A lawyer with special expertise who provides the firm with regular counsel
- An attorney falling between the status of associate and partner
The Daily Grind
If an attorney serves as of counsel for numerous firms, a typical week can be very busy. Depending on the specifics of each arrangement, she may spend a lot of time traveling from one firm to another. Some of counsels make themselves available for consultations only, so their client communication may be limited or completely nonexistent. Other of counsel relationships involve handling client matters and attending court proceedings. These relationships can prove more challenging, requiring the attorney to juggle a caseload… possibly from numerous firms. If you decide to take on one of these arrangements, make sure you consult with your state bar to inquire about conflict of interest concerns or other limitations.
As you can imagine, of counsel compensation scenarios are just as varied as of counsel arrangements.
- Salaried – According to an article by FindLaw, amounts generally fall between those of a senior associate and a junior partner. Of counsels may also receive a bonus, or a percentage of the firm’s profit on the case.
- Flat fee – An of counsel may receive a mutually agreed upon flat fee for each case handled on behalf of the firm.
- A revenue split – Under this arrangement, the firm and attorney split the proceeds of each case, based on an agreed upon percentage. For example, the law firm might take 75% of the proceeds, while the of counsel takes 25%.
When entering an of counsel arrangement, there are a lot of decisions to make. It’s important to be clear about the arrangement and ensure that all parties have a clear understanding about every detail to prevent problems down the line.
About Erika Winston:
Erika Winston is a Virginia based writer with a passion for all things legal. As a former domestic relations attorney, she understands the challenge of determining the best fee structure for your practice. Erika is a regular contributor to TimeSolv and a variety of other publications.
