Can a lawyer in one town be 'of counsel' to a law firm in another town while keeping his own separate practice?

Plain-English summary

The inquiry asked whether an attorney with an office in one North Carolina town may serve as "of counsel" to a law firm in another town while maintaining his own practice, and whether the answer changes if both towns are in the same county.

The opinion concluded that an attorney may be designated "of counsel" to a North Carolina firm when the relationship between the two is a close, regular, and personal relationship for the practice of law and the designation is not otherwise false or misleading. It observed that variants of "of counsel" have proliferated, generally involving a holding out of some general and continuous relationship, and that RPC 34 recognized the term could apply to a "close, in-house association," which might suggest lawyers in different towns should not use it. The opinion clarified, however, that the appropriateness of the designation does not turn solely on the location of the offices or the time spent in them, but on whether there is a close, regular, and personal relationship between the lawyer and the firm. Relationships involving only one case or matter, only occasional collaborative efforts among otherwise unrelated lawyers or firms, or primarily the forwarding of legal business would not satisfy the requirements. The opinion stated that the critical consideration is the nature of the relationship and adherence to the rules on conflicts of interest and confidential information, that "of counsel" may not be used unless consistent with the rules on false and misleading communications (Rule 2.1) and firm names and letterheads (Rule 2.3), and that any pertinent jurisdictional limitations on the lawyer's entitlement to practice must be indicated.

Currency note

This opinion was issued in 1991, before the North Carolina State Bar's adoption of the 2003 revisions to the Rules of Professional Conduct. The provisions it applies (Rules 2.1 and 2.3) have since been renumbered and revised. 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 Treat this page as historical context, not current guidance.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: Can lawyers in different towns use the "of counsel" designation?

A: Yes, if their relationship is close, regular, and personal for the practice of law and the designation is not false or misleading; the opinion held that location is not decisive.

Q: What relationships do not qualify as "of counsel"?

A: The opinion concluded that relationships limited to a single matter, only occasional collaboration among otherwise unrelated lawyers, or primarily the forwarding of legal business do not satisfy the requirement.

Q: What rules govern the use of the term?

A: The opinion stated that the use must be consistent with Rule 2.1 (false and misleading communications) and Rule 2.3 (firm names and letterheads), and must indicate any jurisdictional limits on the lawyer's right to practice.

Background and rules framework

The opinion applied North Carolina Rule 2.3 (firm names and letterheads, corresponding to Model Rule 7.5) and Rule 2.1 (false or misleading communications, corresponding to Model Rule 7.1), drawing on RPC 34's earlier treatment of "of counsel." The analysis fixes on the substance of the relationship rather than geography, and on conformity with the rules on conflicts, confidentiality, and truthful holding out.

Citations and references

Rules of Professional Conduct:

• North Carolina Rule 2.3 (firm names and letterheads)
• North Carolina Rule 2.1 (false or misleading communications)
• MR 7.5 (firm names and letterheads); MR 7.1 (communications concerning a lawyer's services)

Other opinions cited:

• North Carolina RPC 34 ("of counsel" as a close, in-house association)

See also

• NC Ethics Op. RPC 116: partnership between lawyers
• NC Ethics Op. RPC 126: letterhead listing of nonlawyers

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/rpc-85/

Original opinion text

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

Editor's Note: This opinion was originally published as RPC 85 (Revised).

Inquiry:

May an attorney with an office in one town in North Carolina properly serve as "of counsel" to a law firm in another town while maintaining his own practice?

If so, would the answer be different if both towns were in the same county?

Opinion:

An attorney may be designated "of counsel" to a North Carolina law firm when the relationship between the two is a close, regular and personal relationship for the practice of law and this designation is not otherwise false or misleading.

Over the years there has been a proliferation of variants of the term "of counsel," generally where there is a holding out to the world at large about some general and continuous relationship between the lawyers and law firms in question. In RPC 34, it was recognized that the term could be properly applied to a relationship characterized as a "close, in-house association," suggesting, perhaps, that lawyers and firms in different towns should not use the term "of counsel" to describe their relationship. However, the appropriateness of the "of counsel" designation does not turn solely upon the location of the parties' offices, nor does it turn solely on the amount of time spent in those offices. Rather, the "of counsel" designation (or one of its variants) is appropriate when there is a close, regular and personal relationship between the lawyer and the law firm. Thus, relationships that involve only one case or matter, that involve only occasional collaborative efforts among otherwise unrelated lawyers or firms, or that primarily involve only the forwarding of legal business would not satisfy the requirements for the use of the "of counsel" appellation. The critical consideration is the nature of the relationship and the adherence to the rules applicable to conflicts of interest and confidential information. In no event may "of counsel" be used unless the usage is consistent with the rules pertaining to false and misleading communications (Rule 2.1) or firm names and letterheads (Rule 2.3). Any pertinent jurisdictional limitations on the lawyer's entitlement to practice must also be indicated.