“Of Counsel” Lawyers Are Associated With Law Firm for Purposes of Conflicts

scalesA law firm can designate one or more lawyers as having an “Of Counsel” relationship with the firm. While the use of the term can vary from firm to firm, the “core characteristic properly denoted by the title ‘counsel’ is . . . a ‘close, regular, personal relationship’; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term ‘associate,’ which is to say a junior non-partner lawyer, regularly employed by the firm.” See ABA Formal Op. 90-357 (May 10, 1990). The ABA has opined that “of counsel” relationships do not include “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 “an outside consultant.” However, the ABA has noted that there is no prohibition against a law firm being “of counsel” to another law firm.

The Louisiana Supreme Court recently held that a lawyer who is associated with a law firm in an “Of Counsel” capacity is treated like any other lawyer associated with the firm for purposes of imputation of conflicts of interest. In In re Randy J. Fuerst, No. 2014-B-0647 (La. Dec. 9, 2014), the court stated that “[a] lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions.” Therefore, the Louisiana Rules of Professional Conduct generally require that a lawyer loosely associated with a firm in an “of counsel” capacity be treated no differently from any other firm lawyer.

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