So You Want To Be “Of Counsel” (With Forms)
by Theodore M. David
Theodore M. David,
a tax practitioner in Hackensack, New Jersey, is a former IRS Agent and IRS District Counsel attorney (1974 to 1978)
(New York, NY). Holder of an LL.M degree in Taxation from New York University, Mr. David has practiced in the IRS tax
dispute area in all branches of the Internal Revenue Service for more than 30 years. In addition to his tax practice, he is
Professor of Law and Taxation at Fairleigh Dickinson University’s Graduate Tax Program. Mr. David is a frequent
contributor to ALI-ABA’s The Practical Tax Lawyer, and is author of the ALI-ABA book, Dealing with the IRS. (For more
information, go to www.ali-aba.org/BK62.)
Depending on your circumstances, opting to become “Of Counsel” could be just the right
No coronation of a King in a land so far
Compares to admission to your own State Bar;
Oh, the joy of a swearing-in
Couldn’t wait to begin.
By now you’ve risen like a star;
You may be Judge or run that Bar;
Gray in your temples, lines in your face,
Wondering how to pace this race.
No gold watch or a plaque will do,
Perhaps “Of Counsel” can be the role for you.
HARRISON FORD is a few months short of 68, Paul McCartney the same,
Racquel Welch nearly 70. What do they all have in common? They are still
doing what they love...only not as much. There you have it.
Over these last 35 years, I have often heard lawyer colleagues say it
would be a perfect profession if only there were a spigot that, from time
to time, you could close or at least turn down to reduce the flow of work.
Perfection would also require being relieved of the administrative
headaches of running the business of lawyering. Lo and behold, there may
be such a device called the “Of Counsel” (OC) relationship. At least that
may be the goal of us Ford-McCartney-Welch devotees.
The OC designation is not only for aging barristers but can be a way for
new blood to revitalize old firms or for any firm to expand its reach of
practice without the common overhead expense and commitment of trying to
take on experts as partners or associates. So, whether rocking-chair bound
or new to the game, this article is for you.
“OF COUNSEL” DEFINED • ABA Formal Opinion 90-357 (1990) defines the OC
capacity as a close, regular, personal relationship which is neither that
of “partner” or “associate.” The Opinion, which has been embodied in the
ethical rules of many jurisdictions, expands the utility of the
relationship beyond former Formal Opinion 330. The current Opinion
envisions specifically the following circumstances:
• The part-time practitioner;
• The retired partner;
• The probationary partner-to-be;
• The permanent senior or tenured attorney.
The “part-time” designation includes full-time practice to part-time and
those who may have changed careers (government, teaching, etc.)
The Opinion is also specific as to circumstances that are not
encompassed in the OC designation:
• A single case;
• Forwarding or receiving legal business;
• Collaborative efforts among otherwise unrelated lawyers or firms;
• Outside consultants.
No matter the purpose of the relationship, its nature must be made clear
as between the firm and any such lawyer as well as to the client who
engages services. To accomplish those goals, a written agreement is a
necessity and the development of an appropriate client engagement letter
setting forth the relationship should be employed. Clients discussing
engaging the lawyer or firm should be made to understand the relationship
and agree in writing to its terms. A suggested agreement for the part-time
practitioner and engagement letter is found at the end of this article.
The Part-Time Practitioner
The part-time practitioner is neither an associate or partner of the
firm and practices in association with the firm but on a basis different
than that of mainstream lawyers in the firm. He or she is either retiring
from a full-time practice or has changed careers entirely. Judges,
government officials, professors, and corporate counsel may be examples of
such career changers.
The Retired Partner
Various prior formal Opinions have toyed with the “close, regular, and
continuing” nature of the retired partner’s OC relationship. Today, many
states recognize no real need to consider such aspects. A more liberalized
view of the retired lawyer/partner relationship allows lawyers designated
as “retired” on the firm’s letterhead to practice with duties set forth in
written agreements with the former firm. These lawyers may be available to
advise in various matters or simply on lighter schedules than they used to
maintain as full-time law firm partners.
The Probationary Partner-To-Be
The lawyer brought into the firm laterally, with the expectation of
becoming a partner after a relatively short period of time, is the
probationary partner and may be properly designated OC.
The firm and the lawyer are dating. If things work out, a marriage is in
their future. The lawyer may be brought to the firm for his or her
expertise, business connections, or long prior experience. The OC attorney
in this probationary phase will be an employee, and the attorney’s duties
and responsibilities set forth in a written agreement with the firm will
reflect that fact.
The Permanent Senior Or
Unlike the probationary lawyer, the OC designation for the senior or
tenured attorney does not include the goal of becoming a partner of the
firm. The senior attorney’s status is somewhere between associate and
partner, but is neither. The senior attorney may be paid a salary as an
employee with no management duties, responsibilities, or liabilities for
loss in the firm.
THE PLIGHT OF OLDER PRACTITIONER • I am fond of saying that I am running
out of the woods, not into them. For me, the idea of an OC relationship
allows me to continue my area of narrow expertise — representing taxpayers
before IRS — with a reduction in time commitment and the administrative
problems of the practice of law. I fit the “part-time practitioner”
designation. I am in that enviable position of also being a full-time
tenured Professor of Law and Taxation, a position I earned after 30 years
of teaching, 50 professional articles and two books, not to mention
countless university committee assignments. As an aside, lawyers who
envision the ivory tower as an easy retirement vehicle are misguided, as
these positions are next to impossible to obtain and often require more
work and time than private law practice.
Older practitioners who desire to change their current work situation
• Reducing hours in their own practices (more days off);