Bar Rules

Formal Advisory Opinion No. 98-4

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 98-4

State Bar of Georgia
Issued by the Supreme Court of Georgia
On October 29, 1998
Formal Advisory Opinion No. 98-4


For references to Standard of Conduct 8, please see Rule 7.5(a); (incorporating Rule 7.1).

For references to Standard of Conduct 9, please see Rules 7.1, 7.5(a), 7.5(e), 7.5(e)(1), and 7.5(e)(2).

For references to Standard of Conduct 35, please see Rule 1.7(a).

For references to Standard of Conduct 36, please see Rule 2.2(a).

For references to Standard of Conduct 37, please see Rule 2.2(a).

For references to Standard of Conduct 38, please see Rule 1.10.

For references to EC 2-11, please see Rule 7.5(a) (incorporating Rule 7.1), Rule 7.5(e)(1) and Comment [2] of Rule 7.5.

For references to EC 2-13, please see Rule 7.5(d) and Comment [1] of Rule 7.5.

For references to DR 5-105(B), please see Rule 1.7(a).

For references to DR 5-105(C), please see Rule 1.7(b), which includes additional procedural requirements.

For references to DR 5-105(D), please see Rule 1.10(a).

For an explanation regarding the addition of headnotes to the opinion, click here.

QUESTION PRESENTED:

Is it ethically proper for a lawyer to represent a criminal defendant when a co-defendant in the same criminal prosecution is represented by a second attorney who is listed on letterhead as "of counsel" to the same law firm?

SUMMARY ANSWER:

Because an attorney who is held out to the public as "of counsel" should have a close, regular, personal relationship with the affiliated firm, the standards of conduct applicable to multiple representations by partners and associates of law firms, should also apply to "of counsel" attorneys. Accordingly, when an "of counsel" attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then under Standard 38, no partner, associate or other "of counsel" attorney of the principal firm may accept or continue such employment.

OPINION:

I. Use of the Term "Of Counsel" on Materials Intended for Public Distribution.

The use of the term "of counsel" to denote relationships between attorneys and law firms has increased in recent years. Traditionally the term was used to designate semi-retired lawyers who desired to maintain a regular association with a law firm for which they were previously a full-time attorney. Today, the term "of counsel" is used to describe a wide range of associations and relationships including lateral hires or attorneys who are in-between associate and partnership classifications. While the primary purpose of this opinion is not to limit or define the terms of such relationships, the Board does believe that some clarification is necessary to protect members of the public who may rely upon the "of counsel" designation in selecting legal representation.

Although the Georgia Code of Professional Responsibility does not define the term "of counsel", the American Bar Association has issued a formal opinion which describes the core characteristics of the term as follows:

... A close, regular, personal relationship; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term 'associate', which is to say a junior non-partner lawyer, regularly employed by the firm.

(Emphasis added). ABA Formal Advisory Opinion 90-357 (1990). The ABA also continues to adhere to aspects of its earlier opinion which prohibited the use of the term "of counsel" to designate the following relationships: (1) a relationship involving only a single case, (2) a relationship of forwarder or receiver of legal business, (3) a relationship involving only occasional collaborative efforts, and (4) relationship of an outside consultant. See ABA Formal Opinion 90-357 (1990) (reaffirming in part ABA Formal Opinion 330 (1972)). Other jurisdictions which have considered this issue have adhered to the ABA's description of the "of counsel" relationships. See Florida Professional Ethics Committee Opinion Nos. 94-7 (1995); State Bar of California Standing Committee on Professional Responsibility and Conduct, Formal Opinion No. 1993-129 and the New York State Bar Association Committee on Professional Ethics Opinion No. 262 (1972).

The Board is of the opinion that the use of the term "of counsel" on letterhead, placards, advertisements and other materials intended for public distribution should denote more than casual contact such as mere office-sharing arrangements and that requiring a close, regular, personal relationship between the "of counsel" attorney and the principal firm is in accordance with the reasonable expectations of the consuming public. Requiring attorneys who are held out to the public as "of counsel" to have a close, regular, personal relationship with the principal firm is also in keeping with well-established standards of conduct requiring lawyers to be scrupulous in the representation of their professional status and prohibiting attorneys from practicing under trade names which are false, fraudulent, deceptive or that would tend to mislead laypersons as to the identity of lawyers actually practicing in the firm. See Standards of Conduct 8 and 9 and EC 2-11 and EC 2-13.

II. Conflicts Analysis for "Of Counsel" Relationships.

The issue as to whether or not a member of a law firm may represent a defendant who potentially has an adverse interest to a co-defendant in the same criminal prosecution and who is simultaneously being represented by an "of counsel" attorney to the same firm must be analyzed in light of the requirement that such an "of counsel" relationship be "close, regular and personal." The Board believes that the prudent and ethical course is for the attorneys involved to apply the same standards in analyzing this potential for conflict of representation as would be applied in more traditional relationships existing between associates and partners with other attorneys in their law firms.

Under these long-standing rules, an attorney is prohibited from continuing multiple employment if the exercise of his independent professional judgment on behalf of a client will be, or is likely to be, adversely affected by his representation of another client. See Standards of Conduct 35 and 36 and DR 5-105(B). If the lawyer is required to decline or withdraw from employment due to the reasons stated in Standards 35 and 36, then no partner or associate of his firm may accept or continue such employment. See Standard of Conduct 38 and DR 5-105(D). The standards do provide for an exception if it is obvious that the lawyer can adequately represent the interest of each of the clients and each client consents to the representation after full disclosure of the possible effect of such representation on the exercise of the lawyer's professional judgment on behalf of each client. See Standard of Conduct 37 and DR 5-105(C).

In addition to associates and partners of law firms, the Board believes that these are sound principles for "of counsel" attorneys to follow as well. This is especially true, given the requirement that attorneys listed as "of counsel" on letterhead and other materials distributed to the public have a close, regular, personal, relationship with the principal firm. Accordingly, when an "of counsel" attorney would be required to decline or withdraw from multiple representations under Standards 35, 36 and 37, then, under Standard 38, no partner, associate or other "of counsel" attorney of the principal firm may accept or continue such employment. This opinion is consistent with those reached by other jurisdictions which have addressed this issue. See State Bar of California Standing Committee on Professional Responsibility and Conduct Formal Opinion No. 1993-129; Florida Professional Ethics Committee, Opinion 94-7 (1995); and Opinion 72-41 (1973)



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