The essence of “of counsel” is a relationship between a firm and an attorney of counsel to the firm “is the closeness of the ‘counsel’ they share on client matters. Members of the public are encouraged to consult with those sharing an ‘of counsel’ relationship with the expectation that the counselling resources of both are fully available to clients. A firm which lists an attorney as ‘of counsel’ on its letterhead, shingle or listing is making an affirmative representation to its clients that the services of that attorney are available to clients of the firm.
The term “of counsel” implies that the lawyer so designated has a relationship with the law firm, other than as a partner* or associate, or officer or shareholder, that is close, personal, continuous, and regular. Whether a lawyer who is denominated as “of counsel” or by a similar term should be deemed a member of a law firm* for purposes of these rules will also depend on the specific facts.
State Bar of California, observes, “The ‘of counsel’ designation has, over the years, come to mean a variety of things in [20 Cal. 4th 1153] jurisdictions across the nation.” Attorneys who are of counsel to a firm may be permanent full-time practitioners who for various reasons are not on the traditional career path towards partnership in the firm. Of counsel attorneys also may be part-time affiliates of a firm who have other personal or professional commitments, or they may be potential partners brought into a firm for a probationary period. (See Buchholz, Of Counsel: It’s not just for retiring, anymore (Oct. 1995) 81 ABA J. 70-74; ABA Com. on Ethics & Prof. Responsibility, Formal Opn. No. 90-357 (1990) p. 3; State Bar Standing Com. on Prof. Responsibility & Conduct, Formal Opn. No. 1993-129, pp. 1-2.)
