Of counsel is the title of an attorney in the legal profession of the United States who often has a relationship with a law firm or an organization but is neither an associate nor 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 used to describe a "close, personal, continuous, and regular relationship" between the firm and counsel lawyer. In large law firms, the title generally denotes a lawyer with the experience of a partner, but who does not carry the same workload or business development responsibility.
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 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 a firm who, although not actively practicing law, nonetheless remains associated with it and available for occasional consultation.
- A lawyer who is, in effect, a probationary partner-to-be, usually brought in laterally with the expectation of becoming partner after a relatively short period of time.
- A permanent status in between associate and partner, having the quality of tenure, or something close to it, but lacking an expectation of likely promotion to partner status.
The title may be used in a number of situations, including:
- Lawyers who have useful experience for a firm (such as knowledge of a particular "niche" practice area) but do not generate enough business to warrant promotion to partnership.
- Senior lawyers seeking relatively low working hours, billable hours and revenue generation requirements.
- Lawyers transitioning from corporate or government roles.
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” or "special counsel" in the United States between 2003 and 2009 was US$216,019 (with salary varying depending on size/reputation of the firm, its location, and the attorney’s experience). At highly prestigious law firms, an "of counsel" or "special counsel" may make as much as US$375,000 per year.
- "Ethical Implications of "Of Counsel" Relationships". Los Angeles County Bar Association. 1990-05-10. Retrieved 2019-06-19.
- Barnes, Harrison. "What Law Firm Titles Mean: Of Counsel, Non-Equity Partner, Equity Partner Explained". BCG Attorney Search. Retrieved 2016-02-29.
- "Formal Opinion 90-357, May 10, 1990" (PDF). American Bar Association Standing Committee on Ethics and Professional Responsibility. Retrieved 2016-02-29.
- 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.