Resource Page: Of Counsel

Informal Opinion 2020-11

• QUESTION: Attorney is retiring from the full-time practice of law, will maintain an active Missouri law license, and is considering associating with a firm Of Counsel. What are the elements of an Of Counsel relationship between Attorney and the firm?
• ANSWER: Attorney’s association with the firm is accurately characterized as an Of Counsel relationship if Attorney’s relationship with the firm is close, regular, and personal; Attorney is not a partner, associate, or shareholder in the firm; Attorney’s involvement with the firm is not limited to forwarding or receiving business, acting in only a single case, providing only occasional collaboration, or acting as an outside consultant; and Attorney’s Of Counsel relationship with the firm is disclosed in all materials in which the firm and Attorney hold themselves out to the public. Rule 4-7.1; Informal Opinion 980143. Attorney must maintain an active license to practice law. In an Of Counsel relationship, Attorney is associated with the firm for purposes of mutual imputation of conflicts of interest per Rule 4-1.10. Informal Opinion 2019-07; see Rule 4-1.0(c), defining “firm” or “law firm,” and Comment [2].

• QUESTION: Attorney is associated with a firm in an Of Counsel relationship. Is the firm permitted to undertake representation of a client if Attorney is prohibited from doing so by Rule 4-1.7 or 4-1.9, provided Attorney is screened from any involvement in the matter?
• ANSWER: In an Of Counsel relationship, Attorney is associated with the firm for purposes of mutual imputation of conflicts of interest per Rule 4-1.10. Informal Opinion 2019-07. Rule 4-1.10 does not provide for screening to eliminate imputation of a lawyer’s disqualification. Informal Opinion 2017-07.

Informal Opinion 2019-07

• QUESTION: Attorney has an Of Counsel relationship with Law Firm. Attorney also plans to provide pro bono representation at a nonprofit entity serving low income clients. Attorney will have access at the nonprofit entity only to the client files of those clients Attorney represents. To what extent will Attorney’s conflicts of interest be imputed to the other attorneys in Law Firm and to the other attorneys associated with the nonprofit entity?
• ANSWER: Attorney’s conflicts of interest from Law Firm will not be imputed to the other lawyers at the nonprofit entity if Attorney’s association at the entity is as a contract lawyer only. To work as a contract lawyer, Attorney’s representation of clients must be on a case-by-case basis, and Attorney must not have access to confidential information, electronically stored or otherwise, of clients Attorney does not represent at the nonprofit entity. See Informal Opinion 20030020. Attorney must avoid any communication with other lawyers at the nonprofit entity about other representations at the entity, and Attorney must protect the confidentiality of all information related to Law Firm representations. Because Attorney is associated Of Counsel with Law Firm, Attorney’s conflicts of interest will be imputed to all lawyers at Law Firm. Rule 4-1.10. Provided Attorney works at the nonprofit entity exclusively as a contract lawyer, as described above, the firm-wide conflicts of the nonprofit entity will not be imputed to the other lawyers at Law Firm. Only the conflicts arising from Attorney’s representations at the nonprofit entity will be imputed to the other lawyers at Law Firm. If Attorney were to become associated with the nonprofit entity in a capacity that allows Attorney access to client files or information generally, both Law Firm and the nonprofit entity would share all conflicts of interest as if they are a single firm, and both Law Firm and the nonprofit entity would be required to disclose Attorney’s dual association in all materials in which they hold themselves out to the public. Rules 4-1.10 and 4-7.1. See Informal Opinion 980143.

Informal Opinion 2020-12

• QUESTION: What requirements govern a firm’s division of fees with Attorney who is associated with the firm in an Of Counsel relationship?
• ANSWER: If Attorney’s association with the firm is accurately characterized as an Of Counsel relationship (see Informal Opinion 2020-11), Rule 4-1.5(e) does not regulate the division of a fee between the firm and Attorney. Instead, the fee must comply with the remaining provisions of Rule 4-1.5, as must any fee charged by any other lawyer associated with the firm.

Informal Opinion 980143

• QUESTION: May Attorney be a partner in one firm and be “Of Counsel” to another firm?
• ANSWER: It is possible for Attorney to be “Of Counsel” to one firm and a partner in another. If Attorney has a relationship with more than one firm, the conflicts of each firm become the conflicts of the other. Also, it will be necessary for both firms to disclose the relationship with the other firm everywhere they hold themselves out to the public.