Ethics Committee Formal Opinion #1988/9-20
“Of Counsel” Relationship with Out-of-State Attorney
April 6, 1989
There is no absolute bar to an arrangement involving a lawyer working as an employee of one firm while being listed as “of counsel” in another firm. The fact that the firms have offices in different jurisdictions would not preclude the arrangement.
A relationship must meet several criteria in order to warrant the use of the term “of counsel”:
- It must not be merely that of forwarder-receiver of legal business;
- It must be continuing or semi-permanent;
- It must not be that of a partner, of a fellow member of a professional legal corporation nor that of an employee;
- It must be close, regular, and personal;
- The “of-counsel” lawyer must be actively engaged in the practice of law.
In using the term “of counsel” a certain relationship between attorneys must exist, an attorney must comply with Rules 7.1 and 7.5, and must refrain from using one’s letterhead in a manner which misleads the public. (Rule 7.1; Rule 7.5).
Similar requirements of complying with Rules 7.1 and 7.5 exist for the use of other terms such as “affiliated” or “associated”. (Rule 7.1; Rule 7.5).
An attorney practicing in two jurisdictions may be subject to the disciplinary rules of both states. (Rule 8.5).
All attorneys involved in an “of counsel” relationship must be particularly sensitive to potential and existing conflict of interest problems. (Rule 1.7; Rule 1.10).
Attorneys involved in an “of counsel” relationship must be sensitive about fee-splitting arrangements generally, and in particular with a person not admitted to practice in this jurisdiction. (Rule 1.5; Rule 5.4; Rule 7.2(c)).
A New Hampshire attorney may be “of counsel” to an out-of-state attorney. However, an out-of-state attorney not admitted to practice in New Hampshire cannot be “of counsel” in this jurisdiction to a New Hampshire attorney. (Rule 7.1; Rule 7.5(d)).
A lawyer shall not assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law. Such activity would include the posting of a sign in this jurisdiction for any attorney who is not admitted in this jurisdiction. (Rule 5.5(b)).
It would be false and misleading communication to post a sign in this jurisdiction for an attorney who is not admitted to practice in this jurisdiction. (Rule 5.3; Rule 7.1).
A lawyer is responsible to a certain extent for the activities of nonlawyer associated with a lawyer. (Rule 5.3).
A lawyer should not allow use of a telephone by an attorney who is not admitted to practice, in a way that constitutes the unauthorized practice of law or that is false and misleading. (Rule 5.5(b); Rule 5.3; Rule 7.1).
Does the Committee see any ethical violation in such an arrangement?