Comments on: Adding an Of Counsel to Your Practice

By: Carolyn Elefant

Carolyn Elefant — Sun, 09 Oct 2011 22:55:21 +0000

I don’t think that the fee splitting issue is a problem provided that it is handled by consulting bar counsel for guidance (and it’s generally allowed in most places where the agreement is in writing with appropriate disclosure to the client). What is more surprising is that you have been able to find someone to act as an of counsel who is willing to accept a fee share rather than being paid after the work is performed. I’ve been of counsel to firms and have never been asked to accept those terms. The adverse impact to the of counsel is even worse when you consider that the of counsel (if working on his/her own) might be be precluded from taking matters that conflict with clients/matters your firm services. I suppose if a case were substantial or precedential, I’d be willing to consider a fee share or deferred payment of some type but not for ordinary run of the mill work. But I’m not sure that I would ever affiliate as of counsel with a firm under the terms you’ve discussed – too one-sided from my perspective (though maybe if I were retired or just working part time I would feel differently – and perhaps that is a potential ground for finding of counsels)

By: Gretchen Gaynor

Gretchen Gaynor — Thu, 06 Oct 2011 21:03:00 +0000

This is very timely for me as I have been thinking about approaching a senior attorney about such an arrangement. It seems like it would be a good way of testing the waters for a solo to transfer an old practice to a younger lawyer in order to retire in a few years.

By: Rachel Rodgers

Rachel Rodgers — Thu, 06 Oct 2011 18:28:22 +0000

I totally agree, Suzanne. There’s no point in doing it, just to do it. If there is no real, tangible and necessary value that the Of Counsel will add, then its just a cost that eats away at profits. Such costs should be cut. However, with the right fit and combination of experience/expertise/practice area, it can be really awesome.

Something I should have probably included in the article is that I think its a good practice to make the initial term 6 months or less. That way both parties can try it out and see if its working for them before committing to a longer term. And if its not working, there is an easy break at the end of the initial term instead of a break up with hard feelings.

By: Suzanne Meehle

Suzanne Meehle — Thu, 06 Oct 2011 15:42:03 +0000

I’m glad to see you writing about this, Rachel. It’s a misunderstood area for most solos and small firms.

My prior firm with a business partner hired two lawyers Of Counsel. One worked out very well – his practice area meshed nicely with our business-oriented practice – and the other – a family law practitioner – just didn’t fit well with how we practiced law and we had to let him go. So my only advice is to be sure that the value-added proposition of bringing one Of Counsel is really there for your clients before you take on that administrative burden.

By: Rachel Rodgers

Rachel Rodgers — Thu, 06 Oct 2011 14:27:37 +0000

Thanks for your tips, Lisa!

I agree that the Of Counsel should get paid even if the law firm doesn’t but it does make it easier on the law firm if the Of Counsel is paid when the client pays. Then of course, at some point (30 days out maybe?), the firm should pay the Of Counsel whether they have been paid or not. But it does make sense that if the Of Counsel is paid a fee as a contract attorney, then you don’t have to deal with fee splitting issues. In the end, that’s all dependent on the agreement that is negotiated and what the parties feel comfortable with.

By: Lisa Solomon

Lisa Solomon — Thu, 06 Oct 2011 13:27:52 +0000

When a hiring attorney develops a regular and ongoing relationship with a freelance attorney, the two sometimes decide that the freelance attorney will be identified as of counsel to the hiring attorney’s firm. Over the course of my career as a freelance lawyer, I have been of counsel to three different firms. When I stopped working on a regular basis with those firms, the “of counsel” relationship terminated (of course, I might still work with the firms now and then).

To avoid fee-splitting issues (and, frankly, to avoid cash flow issues for the freelancer), I always recommend that freelance attorneys insist on being paid regardless of when (and even if) the client pays the hiring attorney.

Finally, the ABA sells a book called The Of Counsel Agreement: A Guide for Law Firm and Practitione. You can find it at http://is.gd/zcSrkC.