How Do You Become Of Counsel at a Law Firm?

Of counsel is one of the most flexible arrangements in law: you work closely with a firm without becoming a partner, an associate, or an owner. For an experienced solo, a specialist, or a lawyer in transition, it can be an ideal fit. The question is how you actually get there.

This is general information, not legal advice, and the rules vary by state, so confirm your own jurisdiction's rules before you act. If you want the background on the arrangement itself, start with our overview of what "of counsel" means. Here is how to become of counsel and set the relationship up well.

What Qualifies as a Genuine Of Counsel Relationship?

A close, regular, continuing relationship with the firm, not a single case or a one-off project. That distinction is the heart of the arrangement. The title describes an ongoing affiliation, and using it for anything less can be misleading.

ABA Formal Opinion 90-357, the opinion that shaped the modern understanding of the title, frames of counsel as a continuing relationship that is not that of a partner or an associate. In practice that means you are involved with the firm's work on an ongoing basis, available and affiliated, even if you are not full time and not an owner.

Who Is a Good Candidate to Go Of Counsel?

Lawyers who bring something a firm wants but who do not want, or no longer want, the commitments of partnership or employment. A few profiles come up again and again.

• An experienced solo who wants firm resources and affiliation while staying independent.
• A specialist whose expertise a firm needs occasionally but not full time.
• A partner winding down who wants to keep practicing part time.
• A lawyer between roles who wants to stay active and affiliated.

The common thread is value plus flexibility. You offer the firm depth, a book of business, or a specialty, and in return you get affiliation without the all-in obligations of ownership.

How Do You Approach a Firm About It?

Lead with the value you add, then propose a structure. Firms say yes to of counsel arrangements when the lawyer solves a real problem for them, so make that problem and your fit for it explicit.

• Identify firms where your specialty, overflow capacity, or client base fills a gap.
• Make the business case: what work you will handle, what clients you bring, what expertise you add.
• Propose how the relationship would work, including your role, availability, and how you would be paid.
• Be candid about conflicts up front, since your clients and theirs will have to be checked against each other.

Existing relationships make this far easier. A firm you have co-counseled with or referred work to already knows how you operate, which is one reason a strong referral network pays off well beyond any single case.

What Should the Of Counsel Agreement Cover?

Put the relationship in writing, and cover scope, money, conflicts, the title, and how it ends. A clear agreement protects both sides and forces the hard questions early. At a minimum it should address the following.

• Scope and role. What work you handle, your availability, and whether the affiliation is exclusive.
• Compensation. How you are paid, whether by hourly rate, salary, fee share, or origination credit.
• Conflicts. How conflicts are checked, since an of counsel lawyer is generally treated as part of the firm for conflict purposes.
• Use of the title. How you may describe the relationship in marketing and on letterhead.
• Malpractice coverage. Whose insurance covers your work for the firm.
• Termination. How either side can end the relationship and what happens to shared clients.

Rather than rely on a form you found online, have the agreement reflect your actual arrangement. The details carry real ethical weight, especially conflicts and the title.

How Will You Be Paid?

It depends on the arrangement, and of counsel compensation takes several common shapes. Some lawyers draw an hourly rate or a salary, some share in fees on the matters they work, and some earn origination credit for clients they bring in.

Because an of counsel lawyer is usually treated as within the firm, fees paid inside that relationship are generally not a cross-firm fee split. When you share fees with lawyers outside the firm, the normal fee-division rules apply, and those vary by state. Our guide to attorney fee splitting covers how those outside splits work where you practice.

What Will the Firm Expect From You?

Availability, reliability, and that you represent the firm well. Even though the role is flexible, an of counsel relationship is ongoing, so the firm is counting on you to be reachable and responsive on the matters you touch.

In practice that means handling your work to the firm's standards, communicating promptly, and bringing the expertise or clients you promised. The affiliation puts the firm's name behind your work and your name behind theirs, so both sides have a stake in how you show up.

Should You Affiliate With Just One Firm?

For most lawyers starting out in the role, yes, because each affiliation multiplies your conflicts. Being of counsel to more than one firm is possible, but every added relationship generally imputes conflicts in both directions, which can quickly limit who everyone can represent.

If you do consider multiple affiliations, map the combined client lists first. The arrangement only works if those lists can coexist, and that is a question to answer before you sign, not after.

How Long Does It Take to Set Up?

Less time than a partnership track, more than a handshake. Once a firm is interested, the gating items are the conflict check and the written agreement, and both deserve care rather than speed.

Expect to spend real time reconciling client lists and negotiating the terms that matter: compensation, scope, the use of the title, and malpractice coverage. Rushing those is how of counsel relationships create problems later, so treat the setup as worth doing properly.

What Are the Common Mistakes to Avoid?

Using the title loosely, ignoring conflicts, and leaving the arrangement undocumented. Each creates real exposure. The title has to reflect a genuine, continuing relationship, or it risks being false or misleading under ABA Model Rule 7.1.

Conflicts are the other big trap, because Model Rule 1.10 generally imputes an of counsel lawyer's conflicts to the firm and the firm's to the lawyer. Run the checks both ways before you affiliate. If a formal of counsel tie feels like more commitment than you want, remember it is not the only way to collaborate. You can refer matters and co-counsel through a network without merging conflicts. Join Overture for free to collaborate with other attorneys while staying fully independent.