Nearly every lawyer has heard of the “of counsel” relationship, yet few understand what it is. That’s not surprising, because of the many different variations of “of counsel” relationships, from the retired senior partner who stays on with the firm in an “of counsel” capacity to the part-time lawyer who doesn’t generate enough business to warrant equity partnership to the fairly new solo with a unique expertise in a novel field that he provides on an “of counsel” basis to a more established firm. Whatever the “of counsel” relationship looks like, there’s really only one hard and fast rule: “a close, regular, personal relationship” must exist between an of counsel lawyer and a law firm. ABA Formal Op. 90-357 (May 10, 1990) [NOTE: It will cost you twenty bucks to purchase the ABA Formal Opinion or you can access it at the Growing Solo Resource Center free of charge if you register to use MyShingle].
In addition to the sample agreements, ethics decisions and power point presentation at the Growing Solo Resource Center, here’s a round up of other resources on the of counsel agreement.
Virginia: Ethics rules on of counsel (excellent searchable data base)
New York: Ethics decision on of counsel relationships (2005)
California: Ethics discussion on of counsel liability
Minnesota: Of Counsel Relationships (Eric Cooperstein, Dec. 2008)
District of Columbia: Service as of counsel to two firms
If you have any other decisions to add, please post them in the comments and I’ll add them to the list