A law firm can enter into an “of counsel” relationship with another law firm as long as both firms comply with professional conduct rules, according to an Ohio Supreme Court Board of Commissioners on Grievances & Discipline advisory opinion.

The board was presented with the following question: “May a law firm, rather than an individual lawyer, be designated ‘of counsel’ with another law firm?”

Opinion 2014-4 cites three prior advisory opinions that allowed multiple “of counsel” relationships and lawyers practicing in multiple law firms at the same time to reach this conclusion. The opinion also notes that no professional conduct rule or rule governing the bar prohibits firm-to-firm “of counsel” relationships.

The opinion cautions, however, that the ethical issues are multiplied in these arrangements.

“Law firms also must be cognizant that in order to maintain an ‘of counsel’ relationship, the firms must maintain the requisite ‘close, regular and personal’ relationship,” the opinion states. “Depending on the size of the two ‘of counsel’ firms, this relationship may not be feasible. The ‘of counsel’ relationship should not be a loose alliance for marketing and advertising purposes.”

Additional considerations include the division of fees, lawyers’ fiduciary duties, maintaining lawyers’ “active” Ohio registration status, including the jurisdictional limitations of the “of counsel” lawyers and firms on letterhead, disclosing the “of counsel” relationship to clients in engagement letters, and not including an “of counsel” lawyer in the firm name who’s not already a partner.

Advisory Opinions of the Board of Commissioners on Grievances and Discipline are informal, nonbinding opinions in response to prospective or hypothetical questions regarding the application of the Supreme Court Rules for the Government of the Bar of Ohio, the Supreme Court Rules for the Government of the Judiciary, the Ohio Rules of Professional Conduct, the Ohio Code of Judicial Conduct, and the Attorney’s Oath of Office.

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