Ethics Committee Advisory Opinion #1985/6-5
July 11, 1986
Dual employment by an attorney as a salaried associate with one firm and “of counsel” with another law firm is permissible.
A professional association may not (because of misleading implications) continue to use the name of a former director in the law firm’s name, when that former director is now only “of counsel”, and is simultaneously employed as a salaried associate in another law firm. (Rule 7.5(a)).
An “of counsel” lawyer may be compensated on a basis of division of fees in particular cases or on a basis of consultation fees, but not by profit sharing.
In any advertising, it should be made clear to prospective clients the limited nature of employment (i.e. “of counsel”). (Rule 7.1).
(1) Whether a lawyer, acting in compliance with the recently adopted New Hampshire Rules of Professional Conduct, may simultaneously be employed as a salaried associate with one firm and as “Of Counsel” to his or her previous professional corporation?
(2) Whether a professional corporation may continue to use, in its corporate designation, the name of a former director who now has an “Of Counsel” relationship with the corporation and is simultaneously employed as a salaried associate by another law firm in a different community in New Hampshire?
(3) Whether a lawyer acting as “Of Counsel” to a professional corporation may be compensated on a profit sharing basis directly proportionate to the corporation’s gross receipts as generated by that lawyer’s efforts?
(4) What notice does the professional corporation give to the general public and its clients?