Of counsel is, in the legal profession of the United States, often the title of an attorney who has a relationship with a law firm or an organization, but is not an associate or a partner. Some firms use titles such as "counsel", "special counsel", and "senior counsel" for the same concept. According to American Bar Association Formal Opinion 90-357, the term "of counsel" is to describe a "close, personal, continuous, and regular relationship" between the firm and counsel lawyer.
Four American Bar Association definitions
Formal Opinion 90-357 of the American Bar Association provides four acceptable definitions of the term:
- A part-time practitioner who practices law in association with a firm, but on a basis different from that of the mainstream lawyers in the firm. Such part-time practitioners are sometimes lawyers who have decided to change from a full-time practice, either with that firm or with another, to a part-time one, or sometimes lawyers who have changed careers entirely, as for example former judges or government officials, or attorneys who transition from corporate/in-house practice to law firm practice.
- A retired partner of the firm who, although not actively practicing law, nonetheless remains associated with the firm and available for occasional consultation.
- A lawyer who is, in effect, a probationary partner-to-be: usually a lawyer brought into the firm laterally with the expectation of becoming partner after a relatively short period of time.
- A permanent status in between those of partner and associate, having the quality of tenure, or something close to it, and lacking that of an expectation of likely promotion to full partner status.
Conflicts of interest
The title of "of counsel" carries with it particular ethical responsibilities. For instance, when the purpose has a conflict of interest, it is normally that "Of Counsel" is disqualified from a matter, which also normally extends to the entire law firm.
Some firms also use the term to refer to attorneys hired on a temporary basis to assist with a particular case. However, because "of counsel" describes "a close, regular, personal relationship", temporary lawyers used by law firms to engage in document reviews for a specific project or for limited duration are not "of counsel".
The average annual base salary for Of Counsel in the United States has been listed at US$216,019 (with salary varying depending on size/reputation of the firm, location of the firm, and the attorney’s years of experience).
- "County Bar Update". Los Angeles County Bar Association.
- See People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc., 20 Cal. 4th 1135 (1999).
- The Economics and Ethics of Hiring a Temporary Lawyer by Peter J. Gardner ("A temporary lawyer is not 'of counsel'")
- Wisconsin Lawyer ("'Temporary lawyer' does not include a lawyer who has an 'of counsel' relationship with a law firm or who is retained in a matter as independent associated counsel")
- National Association for Legal Career Professionals (separately defining "contract attorney/temporary attorney" as substantively distinct from "of counsel")
- Washington State Bar Association (expressly distinguishing between "contract lawyer" and "of counsel")
- Contract Lawyers in Kentucky (relying upon ABA Formal Opinion 88-356 in specifically distinguishing "contract lawyers" and "temporary lawyers" from the meaning "of counsel")
- The Of Counsel Agreement: A Guide for the Law Firm and Practitioner ("the use of the title 'Of Counsel' is permissible . . . as long as the 'Of Counsel's' relationship with another lawyer or firm is close, regular and personal and the use of the title is not otherwise false or misleading," and among the arrangements specifically excluded from the use of this designation are where the attorney is involved in only "a single case" for the law firm or constitutes an "outside consultant").
- Authors unknown (2003 to 2009). Jobs-Salary.com: "A total of 18 real of counsel salary data listed. Salary Average: $216,019 Salary Range: $62,000 $400,000", ranging from 2003 to 2009. Retrieved from http://www.jobs-salary.com/of-counsel-salary.htm.