Despite the fact that many people don’t understand the term “of counsel,” a growing number of law firms are creating of counsel positions for lawyers— and these of counsel lawyers play different roles, depending on the culture of the Firm they are part of.

Here are some examples of the Of Counsel position:

  • Traditionally, retired partners, in relinquishing their role in the law firm partnership, have taken the of counsel title, which gives them an office, a secretary, and lets them ease out of practice gracefully. Their knowledge and experience continue to be a firm resource. Often these guys put in as many hours and bring in as much business as before.
  • Politicians sometimes become of counsel. Typically, they become affiliated with firms in Washington, D.C., or the Washington office, perhaps opened just for them, of a home state firm. The arrangement gives them a salary with a minimum of conflicts of interest while they ease into the working in the private sector again. In exchange, the firm obtains a rainmaker with political connections.
  • Sometimes law professors who work on occasional cases for a firm, in-house corporate counsel, or on behalf of a legal foundation will become of counsel.
  • Of counsel has even been an umbrella for a “mommy track” to partnership. During the last decade, the number of women holding of counsel positions has more than tripled.
  • Of counsel positions allow law firms to evaluate lateral hires before making them partners. In addition, of counsel can cover lawyers whose primary value to a firm is their business or technological expertise or lawyers who want to combine jobs in law, business, politics, and education.
  • Of counsel allows small law firms to expand their areas of expertise and prestige by adding specialists with little expenditure. This often allows for greater flexibility and creativity in devising career paths.

Attracting and retaining top legal talent is difficult. Competition has been particularly fierce in the technology sector. Often firms will allow clients to “borrow” their lawyers for short periods of time or on a “project” basis.

Sometimes, it just comes down to the fact that lawyers are unsatisfied with their careers and are looking for alternatives. In the past, a lawyer would typically work for one or two law firms during his or her lifetime. That is no longer the case. Nowadays lawyers can move between firms every few years with ease.

Lawyers listed on a law firm’s letterhead as of counsel should have a substantial connection with the firm. This usually prevents firms from “renting” the names of famous lawyers who do no real work with the firms.

Clients, and the public, should expect confidentiality and loyalty from attorneys

Conflicts: Clients, and the public, should expect confidentiality and loyalty from attorneys who effectively declare they practice law in a close, personal, and continuing association. These legitimate expectations would be frustrated if a firm could represent one party in litigation while an attorney of counsel to the firm represented an adversary in the same case. California clearly treats the of counsel lawyer as a partner or associate for purposes of conflict of interest and disqualification rules. Therefore, the lawyer’s dual relationships to the firm as well as one of the clients must be fully disclosed to both clients. It would not be surprising if the competitor decides not to remain a client, but it may be willing to continue being represented by the firm because of the value it places on the firm’s services and the trust it has in the of counsel lawyer. Under California law, a client, whether or not a party to an action, may assert the privilege to prevent disclosure of confidential communications between the client and its lawyer. The communications protected by the privilege include information that is transmitted between a client and its lawyer during the course of their attorney-client relationship and that is not disclosed to any third persons other than anyone present during a consultation to further the interests of the client.

The SEC increasingly is turning its enforcement focus to lawyers, and of counsel lawyers should take note. The attorney conduct rules establish specific guidelines that a securities lawyer must follow when representing a public company. Specifically, an attorney who represents a public company must comply with the SEC’s “up the ladder” reporting requirement if the attorney believes there is evidence of a material violation by the company of federal securities laws. The attorney must report the violation to the company’s chief legal officer (CLO) and possibly the chief executive officer (CEO).