Inside Track: Ethical Dilemmas: Of Counsel to Out-of-state Firm Is More Than a Contract Relationship:

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  • Ethical Dilemmas: Of Counsel to Out-of-state Firm Is More Than a Contract Relationship

    Is it ethical for me to tell Wisconsin clients that I am “of counsel” to an out-of-state law firm when I have no relationship with the law firm other than the few Wisconsin matters?
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    Nov. 20, 2013 – Ethical dilemmas affect every lawyer’s practice. This series of questions and answers appears each month in InsideTrack. The answers, offered by the State Bar’s Ethics Counsel org tpierce wisbar Timothy Pierce and Assistant Ethics Counsel org akaiser wisbar Aviva Kaiser, are intended to provide guidance only and are not legal authority. Each situation will depend on the facts and circumstances involved.

    Question

    I have been asked by an out-of-state law firm to be “of counsel” for a few Wisconsin matters. My responsibility is to meet with the clients, explain documents to them, and obtain the necessary signatures. I am paid a set amount for each matter, and I have no other relationship with the out-of-state law firm. The out-of-state firm has told the Wisconsin clients that I am “of counsel” to the firm, and I have been instructed to do the same. Does this violate any rules?

    Answer

    Yes, in Wisconsin, the “of counsel” relationship requires more than a local counsel or contract attorney relationship. In 2009-OLR-7, the attorney was found to have violated SCR 20:7.5(d) and SCR 20:8.4(a) “by engaging in a course of conduct in which she and her firm held her husband out as an employee, associate or partner of her firm and allowed him to hold himself out as of counsel to the firm, when he was a contract attorney independent of the firm at all relevant times.”

    SCR 20:7.5(d) permits lawyers to “state or imply that they practice in a partnership or other organization only when that is the fact.” The policy underlying this rule is to protect the public from being misled about the relationship. By using “of counsel,” both the law firm and the lawyer imply that the lawyer’s relationship with the firm is more than that of local counsel or a contract attorney. “Of counsel” implies that the lawyer’s relationship is in fact a close, continuing, regular, and personal relationship with the law firm. Wisconsin Formal Ethics Op. E-93-1.

    Moreover, “of counsel” relationships are treated as if the lawyer and the firm are one unit for purpose of imputing conflicts of interest. Wisconsin Formal Ethics Op. E-93-1. Thus, to appropriately use the term “of counsel,” the relationship between the “of counsel” lawyer and the firm must be sufficiently close that conflicts are imputed between them as if they were associated in the same firm under SCR 20:1.10(a).

    References

    SCR 20:7.5(d); SCR 20:8.4(a); Wisconsin Formal Ethics Op. E-93-1; 2009-OLR-7.