Ohio Board Advisory Opinion Op 97-002

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The Supreme Coaurt of Ohio

BOARD OF COMMISSIONERS ON GRIEVANCES AND DISCIPLINE

41 SOUTH HIGH STREET-SUITE 3370, COLUMBUS, OH 43215-6105
(614) 644-5800 FAX: (614) 644-5804

OFFICE OF SECRETARY

OPINION 97-2
Issued April 11, 1997

WITHDRAWN IN PART BY OPINION 2013-1 ON APRIL 4, 2013

[CPR Opinion-provides advice under the Ohio Code of Professional Responsibility which is superseded
by the Ohio Rules of Professional Conduct, eff. 2/1/2007.]

SYLLABUS. A retired attorney may serve as “of counsel” to two different law firms
formed by the retired attorney’s former partners upon dissolution of their law partnership.
An attorney who serves as “of counsel” to more than one firm must maintain a
continuing, close, regular, and personal relationship with each firm and avoid conflicts of
interest. An attomey who serves as “of counsel” is considered a member of a law firm for
purposes of analyzing inyputed disqualification questions. When an attomey serves as of
counsel to more than one law firm, there is imputed disqualification that extends to all
lawyers and firms connected by the “of counsel” relationship.

OPINION. This opinion addresses the propriety of a retired attorney serving as “of
counsel” to two different law firms.

Is it proper for a retired attorney to serve as “of counsel” to two different
law firms formed by the retired attorney’s former partners upon dissolution

of their partnership.

The title “of counsel” is referred to only once in the Ohio Code of Professional
Responsibility in DR 2-102(A)(4), a rule regulating letterhead. Under DR 2-102 (A)(4)
“(a] lawyer may be designated “Of Counsel” on a letterhead if the lawyer has a
continuing relationship with a lawyer or law firm, other than as a partner or associate.”

The “of counsel” title is commonly used to describe a retired partner of a firm who does
not actively practice law, but remains associated with the firm for consultation. It is also
used to describe other types of continuing relationships. See ABA Formal Op. 90-357
(1990) describing four pattems of the of counsel relationship: a part-time practitioner; a
retired partner; a probationary partner-to-be; a lawyer with a permanent status in between
those of partner or associate.

The core characteristic of the “of counsel” relationship is the continuing, close, regular,
and personal relationship. The “of counsel” relationship is more than a referral
relationship and more than a one-time advisor relationship. An attorney who serves as “of

Op. 97-2 2
counsel” to a law firm must maintain a close, regular, and personal relationship with the
firm other than partner or associate. See ABA, Formal Op. 90-357 (1990), Ohio SupCt,
Bd of Comm’rs on Griev & Disc, Ops 91-18 (1991), 90-03 (1990), 88-023 (1988).
The issue of whether an attorney may establish multiple “of counsel” relationships has
been addressed by other states, but not Ohio. Some states permit an attorney to be “of
counsel” to more than one firm simultaneously. See Ass’n of the Bar of the City of New
York, Op. 80-22 (undated); Connecticut Bar Ass’n, Op. 88-13 (1988); Bar Ass’n of
Nassau County, Op. 88-46 (1988); Philadelphia Bar Ass’n, Op. 86-54 (1986) and 86-143
(1986). One state limits an attorney to serving as “of counsel” to only two firms. See
State Bar of Texas, Op. 402 (1982). One state does not permit an attorney to serve as “of
counsel” to more than one law firm. See Iowa State Bar Ass’n, Ops. 87-9 (1987) and 82-
19 (1982).
The ABA view is that an attorney may be “of counsel” to more than one firm. In Formal
Opinion 90-357 (1990) the ABA committee stated that “[a] lawyer can surely have a
close, regular, personal relationship with more than two clients; and the Committee sees
no reason why the same cannot be true with more than two law firms.” That advice is a
departure from its earlier views in Formal Op. 330 (1972) that an attorney may be “of
counsel” to only two firms and Informal Op. 1173 (1971) that an attorney may not be “of
counsel” to more than a single firm.
This Board’s view is that an attorney may be “of counsel” to more than one firm if the
attorney can maintain the requisite continuing, close, regular, and personal relationship
and otherwise comply with the Code of Professional Responsibility. However, as the
ABA committee noted, “[t]here is, to be sure, some point at which the number of
relationships would be too great for any of them to have the necessary qualities of
closeness and regularity, and that number may not be much beyond two, but the
controlling criterion is “close and regular” relationships, not a particular number.” See
ABA, Formal Op. 90-357 (1990).
In expressing this view, the Board is not contradicting, overruling, or withdrawing the
advice in Opinion 89-35 that “[a]n attorney at law may not practice with more than one
legal professional association or law firm in Ohio at the same time.” That opinion applies
to partnership and associate relationships. See Ohio SupCt, Bd Comm’rs on Griev &
Disc, Op. 89-35 (1989). It does not govern “of counsel” relationships which are unique
and distinct from that of partner or associate relationships.
Nevertheless, the attorney who serves as “of counsel” to more than one firm must be
vigilant to avoid professional conflicts of interest and misconduct. The “of counsel”
attorney must maintain the requisite continuing, close, regular, relationship with each
firm he or she serves, which will in effect limit the number of “of counsel” relationships.
If the close, regular, and personal relationship does not exist, then use of the title is false
or misleading under DR 2-101(A)(1). The “of counsel” attorney must avoid conflicts of
interest. This Board agrees with the ABA view, that “there is attribution to the lawyer
who is of counsel of all the disqualifications of each firm, and correspondingly,
attribution from the of counsel lawyer to each firm of each of those disqualifications.”
ABA, Formal Op. 90-357 (1990).

Op. 97-2 3
In conclusion, this Board advises that a retired attorney may serve as “of counsel” to two
different law firms formed by the retired attorney’s former partners upon dissolution of
their law partnership. An attorney who serves as “of counsel” to more than one firm must
maintain a continuing, close, regular, and personal relationship with each firm and avoid
conflicts of interest. An attorney who serves as “of counsel” is considered a member of a
law firm for purposes of analyzing imputed disqualification questions. When an attorney
serves as of counsel to more than one law firm, there is imputed disqualification that
extends to all lawyers and firms connected by the “of counsel” relationship.
Advisory Opinions of the Board of Commissioners on Grievances and Discipline are
informal, non-binding opinions in response to prospective or hypothetical questions
regarding the application of the Supreme Court Rules for the Government of the
Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the
Code of Professional Responsibility, the Code of Judicial Conduct, and the
Attorney’s Oath of Office.

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Op. 97-2