Can a North Carolina firm designate as 'of counsel' a lawyer who is licensed in the state but is in the office only a few days a month?

Plain-English summary

Lawyer A had been a member of the North Carolina Bar for about 15 years and was also a Texas Bar member and a partner in a Houston firm. While living and working in Texas, he kept a second home in North Carolina and a personal and professional relationship with Law Firm X, his family summered in North Carolina, and he visited frequently. As he semi-retired from the Texas practice, he would divide his time between the states, keep a permanent office with Law Firm X, be in the office a few days each month, and stay in frequent contact with the firm's lawyers and staff, eventually retiring to North Carolina. The inquiry asked whether Lawyer A could become "of counsel" to Law Firm X.

The opinion answered yes. Nothing in the Rules of Professional Conduct specifically addresses the use of "of counsel." A firm may designate as "of counsel" another attorney who is licensed in North Carolina and who will have a close, in-house association free and clear of conflict problems, without violating Rule 2.3. The opinion noted that CPRs 82 and 155, decided under the older Code of Professional Responsibility, rested on provisions not carried into the Rules of Professional Conduct, and to the extent those opinions required daily contact or association, they are overruled.

Currency note

This opinion was issued in 1988, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provision it applies (Rule 2.3, firm names and letterhead) has since been renumbered and revised (the corresponding Model Rule is 7.5). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Do the Rules define when a lawyer can be "of counsel"?

A: No. The opinion concluded that nothing in the Rules specifically addresses the use of the "of counsel" designation.

Q: What relationship supports the "of counsel" label?

A: The opinion concluded a close, continuing in-house association free of conflict supports the designation for a North Carolina-licensed lawyer.

Q: Is daily contact required?

A: No. The opinion concluded that earlier CPR opinions requiring daily contact or association were overruled to that extent.

Background and rules framework

The opinion applied North Carolina Rule 2.3, governing firm names and letterhead designations (corresponding to Model Rule 7.5). It declined to read a daily-contact requirement into the "of counsel" label, treating a genuine, continuing, conflict-free association as sufficient, and expressly overruled the contrary daily-contact requirement of CPRs 82 and 155.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 2.3 (firm names and letterhead)
• MR 7.5 (firm names and letterheads)

Other opinions cited:

• CPR 82 and CPR 155 (North Carolina): overruled to the extent they required daily contact for an "of counsel" relationship

See also

• NC Ethics Op. RPC 85: of counsel relationships between lawyers in different towns
• NC Ethics Op. RPC 68: inclusion of non-licensed attorneys in legal directory

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-34/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Lawyer A is a member of the North Carolina Bar and has been a member for about 15 years. Lawyer A is also a member of the Texas Bar and is a partner in Texas Law Firm Y in Houston, Texas. During the years that Lawyer A has lived and worked in Texas, he has maintained a second home in North Carolina and has maintained a personal and professional relationship with Law Firm X. His family moves to North Carolina for the summer and he makes frequent trips to North Carolina throughout the year.

Lawyer A will semi-retire from the Texas practice and will be dividing his time between Texas and North Carolina. He will maintain a permanent office with Law Firm X and will be in the office for a few days each month and in contact with other attorneys and staff of Law Firm X on a frequent basis. It is anticipated that eventually Lawyer A will retire to North Carolina.

May Lawyer A become "of counsel" to Law Firm X?

Opinion:

Yes. Nothing in the Rules of Professional Conduct specifically speaks to use of the designation "of counsel." A firm may designate as "of counsel" another attorney who is licensed in North Carolina, and who will have a close, in-house association free and clear from problems of conflict, without violation of Rule 2.3. CPRs 82 and 155 were decided under the Code of Professional Responsibility and were based on provisions not included in the Rules of Professional Conduct. To the extent CPRs 82 and 155 required daily contact or association, they are overruled.