When a lawyer is listed as “of counsel” at a law firm, it means they have a formal, ongoing relationship with the firm but are neither a partner nor an associate. The American Bar Association describes that relationship as “close, regular, and personal,” a phrase drawn from ABA Formal Opinion 90-357. The designation is more than a courtesy title. It carries real consequences for conflicts of interest, malpractice exposure, and how the attorney fits into the firm’s practice.
How the Role Differs From Partner or Associate
Partners own a piece of the firm, share in its profits, and carry management responsibilities. Associates are salaried employees, often working toward partnership. An of counsel attorney is neither. They don’t hold an ownership stake, they aren’t typically on the partnership track, and they don’t carry the same day-to-day caseload expectations.
What sets the role apart is permanence combined with flexibility. An of counsel attorney isn’t hired for one case, and isn’t someone the firm calls occasionally. The relationship involves frequent contact, regular consultation, and genuine integration into the firm’s practice, but without the full-time commitment or business development pressure of a partner.1Legal Information Institute (LII). Of Counsel
Who Typically Holds the Title
ABA Formal Opinion 90-357 identifies four categories of lawyers for whom the designation properly fits:
- Semi-retired partners who want to step back from full-time practice but stay connected to the firm.
- Part-time practitioners who work with the firm on a different basis than its full-time attorneys, often in a narrow specialty or with a lighter caseload.
- Probationary partners-to-be — lateral hires expected to become partners after a relatively short transition period.
- Permanent non-partner attorneys who hold a stable, tenured position above that of a typical associate but have no expectation of promotion to partner.2American Bar Association. Of Counsel – Its Not Just for Seniors Anymore
Former judges and government officials also frequently take on of counsel roles. Their deep knowledge of specific legal systems or regulatory frameworks makes them valuable to firms handling matters in those areas, even when they aren’t practicing full-time.
Relationships That Do Not Qualify
The title isn’t a label firms can attach to any lawyer they work with. ABA Formal Opinion 90-357 explicitly rules out several arrangements:
- Lawyers brought in to help on a single case, even if they are former partners of the firm.
- Referral sources — lawyers who simply send or receive business.
- Occasional collaborators who work together on scattered matters without a continuous connection.
- Outside consultants brought in periodically for specialized advice.2American Bar Association. Of Counsel – Its Not Just for Seniors Anymore
Using the title when the underlying relationship doesn’t meet the “close, regular, and personal” standard can run into ethics problems. ABA Model Rule 7.1 prohibits lawyers from making false or misleading communications about themselves or their services. Listing someone as of counsel when the relationship is really a referral arrangement or an occasional phone call could cross that line.3American Bar Association. Rule 7.1 – Communications Concerning a Lawyers Services
Conflicts of Interest Are Shared With the Firm
This is where the designation becomes consequential. Under the Model Rules of Professional Conduct, an of counsel attorney is considered part of the firm for conflict-of-interest purposes. When any lawyer in a firm has a conflict, such as a prior representation adverse to a current client, that conflict spreads to every other lawyer associated with the firm.4American Bar Association. Rule 1.10 – Imputation of Conflicts of Interest General Rule
This is called imputed disqualification, and it moves in both directions. If the of counsel attorney previously represented a client whose interests are adverse to a current firm client, the entire firm may be disqualified. If any partner or associate at the firm has a conflict, the of counsel attorney inherits it. The title is not just a label. It creates a web of shared ethical obligations.
Serving as Of Counsel to More Than One Firm
An attorney can technically serve as of counsel to multiple firms, but doing so creates a conflict chain reaction. When a lawyer is of counsel to two firms, those firms are effectively treated as a single firm for disqualification purposes. A conflict at Firm A can disqualify lawyers at Firm B, and vice versa, even though the two firms have no other connection.2American Bar Association. Of Counsel – Its Not Just for Seniors Anymore
ABA Formal Opinion 90-357 suggests there’s a natural ceiling on how many of counsel affiliations one lawyer can maintain. The opinion puts that number at “not much beyond two,” because each relationship still has to be close, regular, and personal. The more firms involved, the harder that standard becomes to meet.
Compensation and Employment Classification
There is no single standard for how of counsel attorneys get paid. Arrangements vary by firm, by role, and by state. Common structures include a flat salary, hourly consulting fees, a percentage of revenue generated from the attorney’s clients, or some combination. Former partners stepping back from active practice sometimes receive retirement-related payments.
One point the ABA’s opinion makes clear: the of counsel attorney should not share in the firm’s general profits or take on management control of the firm’s business. Doing so starts to look like a partnership, which would make the title misleading.2American Bar Association. Of Counsel – Its Not Just for Seniors Anymore
Employee or Independent Contractor
Of counsel attorneys may be classified as employees (W-2) or independent contractors (1099), and the distinction matters for taxes, benefits, and liability. The IRS doesn’t have a special rule for lawyers. It applies the same three-factor test used for any worker, looking at whether the firm controls the attorney’s behavior, the financial aspects of the work, and the nature of the ongoing relationship.5Internal Revenue Service. Independent Contractor (Self-Employed) or Employee
An attorney who sets their own hours, uses their own equipment, and controls how they handle their work tends to look like an independent contractor. One who works at the firm’s office on a set schedule, uses firm resources, and follows firm procedures looks more like an employee. No single factor decides it.
Malpractice Liability Flows Both Ways
Because an of counsel attorney is considered part of the firm, malpractice liability runs between them and the firm. If the of counsel attorney commits professional negligence on a firm matter, the firm is generally exposed to liability. An of counsel attorney may also face claims arising from the firm’s conduct on a shared case.
Both sides have a strong interest in clarifying insurance coverage before the relationship begins. Some firms cover their of counsel attorneys under the firm’s professional liability policy. Others require the attorney to carry separate coverage, especially when the attorney also maintains an independent practice. The specifics belong in the engagement agreement. Assuming coverage without confirming it in writing is where problems start.
Senior Counsel, Special Counsel, and Similar Titles
Law firms use a handful of related titles that can cause confusion. “Senior counsel,” “special counsel,” and simply “counsel” all describe attorneys in the same general category as of counsel. The ABA and most state ethics bodies treat these titles as interchangeable. The same “close, regular, and personal” standard applies regardless of which variation a firm uses, and so do the same conflict-of-interest imputation rules.
Firms sometimes use “senior counsel” for an attorney with more seniority than a typical of counsel, or “special counsel” for someone brought in with a particular expertise. Those distinctions are internal choices, not standardized across the profession. If you’re a client or a prospective hire trying to understand what the title means at a specific firm, ask. The label alone won’t tell you the full picture.