What is an of Counsel?

Melanie Smeltzer
Melanie Smeltzer
Woman with hand on her hip
Woman with hand on her hip

Of counsel is a term originally used to describe a retired or semi-retired attorney who occasionally offered his or her services on particular cases. This is still sometimes true; however, the term has broadened a bit. For instance, it may refer to a lawyer who is not exclusively affiliated with a particular law firm, but who may be used as a consultant. It may also refer to a lawyer who is temporarily employed by a law firm to help manage and prepare a case, but who is not the principal attorney.

In 1972, of counsel was officially defined by the ABA (American Bar Association). This definition stated that a lawyer could only go by that particular title if he was not an associate, partner, or outside counsel, but still maintained a close, continuing, and personal relationship with a certain firm. In addition to an official definition, the ABA also placed several restrictions on the title. For instance, the lawyer should have frequent, if not daily, contact with his chosen firm; the lawyer should limit his assistance to multiple firms; and no two firms could be of counsel to each other.

Many found that these restrictions were too demanding, and in 1990 the definition was revised. This revision changed the amount of time a lawyer must spend with a firm and how two firms may deal with each other; the limitation of such of counsel relationships was rejected entirely. Despite the rule changes, the essential characteristics remained the same, and of counsel lawyers were still required to keep a close relationship with their chosen firms.

With the many revisions that have been made to the title, the definition of who can carry it has also been expanded. This title is often used by senior members at different stages of their careers. For instance, it may be used by a senior member practicing part-time within a firm, or by one who is semi-retired but is occasionally brought in to assist other members.

Senior associates occasionally use this title when they no longer desire partnership within a firm, but are willing to be brought in for specific expertise. They may also use it while waiting to become a partner within a firm. In addition, lateral candidates and firm faculty members may use this title, either to help assist with certain cases, or as a way to help build a practice.

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