The Of Counsel Agreement: A Guide for the Law Firm and Practitioner. Third Edition.
by Harold G. Wren and Beverly J Glascock.

I recently needed to understand the parameters of “Of Counsel” relationships in connection to my solo law practice.

I could not find from New Hampshire courts any published opinions directly addressing the various issues related to “Of Counsel.” My discussions with several NH legal organizations and learned members of the Bar revealed disparate speculation on the meaning and use of “Of Counsel.”

Traditionally, “Of Counsel” is an attorney who is not an owner (like a partner) and is not an employee (like an associate) and is engaged by a law firm to perform certain duties. This traditional expectation of “Of Counsel” can be gleaned from a variety of NH Bar Association Ethics Committee Opinions issued in the mid to late 1980s.1 2

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The NH Ethics Committee opinions exploring “Of Counsel” issues predate the most recent (1990) ABA Ethics opinion3 on the topic. The ABA Opinion greatly broadened and liberalized the definition of “Of Counsel” as compared to an earlier ABA Opinion. Current New Hampshire practice in use of “Of Counsel” may have caught up with the national experience.

The national experience is reflected in an American Bar Association publication The Of Counsel Agreement: A Guide for the Law Firm and Practitioner.  The book’s authors track the evolution in the definition and use of  “Of Counsel.” The use of the title “Of Counsel” is permissible, according to authors of the book, 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.  “Of Counsel” suggests four permissible patterns of relationships:

1. the part-time practitioner;
2. the retired partner;
3. the probationary partner;
4. the permanent senior attorney.

 Four relationships are excluded from the “Of Counsel” arrangement:

1. a single case;
2. a forwarding or receiving of legal business;
3. collaborative efforts among otherwise unrelated lawyers or firms;
4. outside consultants.

The book gives examples and some authority for each of the various included and excluded arrangements.

In the context of the “Of Counsel” relationship, the authors address legal malpractice, conflicts-of-interests, imputed disqualification, specific duties, compensation arrangements and advertising the relationship. “Of Counsel” as an independent contractor or employee is explored, especially in relation to income taxes. Each chapter contains a helpful summary checklist of the topics covered in the chapter.

­The authors strongly promote use of written “Of Counsel” Agreements. In an Appendix, included in a CD-ROM, the authors provide five sample “Of Counsel” Agreements. The sample Agreements do not sufficiently reflect the specific “Of Counsel” issues ably addressed in the book (e.g., absence conflicts-of-interest provisions). The sample Agreements are occasionally imprecise (e.g., using the word “employment” when the neutral word “engagement” could lessen confusion), unnecessarily wordy (e.g., using surplus phrases such as “expressly understood that” and “under terms of this agreement”) and show a lack of proof editing (e.g., use of the word “price” when “prior” was intended).  Also, the sample Agreements are not worded in gender-neutral terms. The sample Agreements are best considered as helpful first drafts.

For use in my NH solo practice I needed to creatively and appropriately arrange and formalize an  “Of Counsel” relationship. The ABA’s The Of Counsel Agreement: A Guide for the Law Firm and Practitioner. Third Edition was of great help in meeting my need. The NH Ethics Committee 1980s opinions are outdated and should not be relied upon to describe current “Of Counsel” relationships in New Hampshire. Rather, Of Counsel Agreements should be used by attorneys in NH wanting an update on the proper role and use of the  “Of Counsel” relationship.  

The Of Counsel Agreement: A Guide for the Law Firm and Practitioner. Third Edition.

by Harold G. Wren and Beverly J Glascock. Chicago. ABA Publishing. 2005. 266 Pages (plus CD-ROM). $89.95. Paperback.

Graham Chynoweth is an attorney in private practice in Concord, NH.

Footnotes

1. New Hampshire Bar Association Ethics Committee Opinions 1984-85/03, 1986-87/10, 1988-89/02, 1988-89/20. 
2. New Hampshire Bar Association Ethics Committee Opinions which mention or invoke issues related to ‘Of Counsel” include 1989-90/04 (public officials), 1993-94/08 (coverage counsel), and 1995-96/03 (temporary lawyer).
3. American Bar Association Standing Committee on Ethics and Professional Responsibility Formal Opinion 90-357.

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