I was recently asked the following question by a fellow young solo:
“I am contemplating [adding an Of Counsel to] my practice and wanted to see what your thoughts were in general and specifically – any advice you might have in setting up that kind of relationship.”
What is an Of Counsel?
Of Counsel adj. reference to an attorney who is not actively involved in the day-to-day work of a law firm, but may be available in particular matters or for consultation. This designation often identifies a semi-retired partner, an attorney who occasionally uses the office for a few clients, or one who only consults on a particular case or on his/her specialty. Putting the name of the attorney “of counsel” on a law firm’s stationery gives the office the prestige of the lawyer’s name and reputation, without requiring his/her full-time presence. Source: The People’s Law Dictionary.
In the ABA’s Formal Opinion 90-357 (1990), an Of Counsel relationship is defined as one where an outside lawyer has a “close, regular, personal relationship” with the firm to which it serves as Of Counsel. This means that you should not designate a lawyer as Of Counsel simply because you share an office space or you work together on one case. In the above Opinion, the ABA gives four examples of qualifying Of Counsel relationships:
- A part-time lawyer within the firm;
- A retired partner of the firm available for consultation;
- A new, lateral attorney who is on a probationary period before being named partner; and
- A lawyer who is a senior attorney with the firm but is not on the partnership track.
Of course, these are examples and do not define all potential Of Counsel relationships.
What is the purpose of adding an Of Counsel?
For the new or young solo, the purpose of adding an Of Counsel to your practice is typically to obtain a close, regular, personal relationship with an attorney who can add particular expertise or experience to your practice for the benefit of your clients. In other words, the point is to beef up the available brain power, expertise and client offerings in your firm. In addition, if it is a more experienced attorney, you get the added bonus of a close mentor.
For example, let’s say you have a family law practice and have the opportunity to take on some international family law cases which are fascinating to you but also somewhat daunting. You may decide to bring on an Of Counsel with a particular expertise in international family law that can lend his or her experience and expertise to your firm’s international family law cases.
In his book, How to Start & Build a Law Practice, Jay Foonberg provides another scenario in which it may make sense to add an Of Counsel to your practice. Jay advises against two competent yet inexperienced lawyers starting a practice together (“As a general rule, two new lawyers getting together will accomplish very little except to prove that two can starve to death at least twice as fast as one”). Instead, Jay recommends establishing an Of Counsel relationship, where each lawyer creates their own solo practice and each solo serves as Of Counsel to the other’s firm. If you have ever been through, or seen someone close go through, a divorce, I don’t have to tell you how financially and emotionally obliterating a failed partnership can be. This Of Counsel arrangement is a test run for a partnership and essentially allows both lawyers to “try before they buy.”
So, how do you do it?
If you think adding an Of Counsel will enhance your law practice, the first step is to find one with the particular experience or expertise you believe will benefit your firm and your clients. Believe it or not, this is a fairly straightforward process – just ask. If you already have a relationship with the potential Of Counsel, go ahead and approach them with your proposed offer (but make sure you are presenting a scenario that has some benefit for them – no one wants to do additional work just to do you a favor). If you don’t already have a lawyer in mind, ask around your attorney network and let them know you are looking to establish an Of Counsel relationship with a particular type of attorney. That’s what I did and it worked out swimmingly.
Once you have found your new Of Counsel, you’ll need to put the Of Counsel relationship in writing. If you’re concerned with keeping overhead low (which all firms should be), then you will likely want to establish an independent contractor relationship, rather than an employee relationship, with your Of Counsel. In terms of compensation, try to work out a fee splitting arrangement where the Of Counsel gets paid when the firm gets paid by the client (this will prevent cashflow issues). Be sure to review your state’s fee splitting rules to ensure compliance.
Additional terms to include in the Of Counsel agreement are the term of the relationship, the duties of both the Of Counsel and the firm, malpractice insurance coverage (be sure to include who will foot the bill), the means and or tools that will be used to collaborate on cases and other rights and liabilities of both parties. Also, keep in mind that if your Of Counsel is practicing law with another firm or as a solo, you will likely need to perform conflicts checks when your firm takes on new clients. Different states have different rules when it comes to conflicts checks with an Of Counsel, so check out your state’s rules and call your state’s ethics hotline, to be sure.
An Of Counsel arrangement can be very rewarding for an experienced attorney who may be pursuing other interests but enjoys mentoring young lawyers or wants to continue to handle legal work in a less demanding arrangement. (Plus, who doesn’t love a little side money?). For the young lawyer, having an Of Counsel can be an enjoyable way to hone their skills in a particular area of law and to work with another attorney without taking on huge financial risks.
All opinions, advice, and experiences of guest bloggers/columnists are those of the author and do not necessarily reflect the opinions, practices or experiences of Solo Practice University®.