ABA/BNA
Lawyers’ Manual on
Professional Conduct™
CURRENT REPORTS
VOL. 29, NO. 3
JANUARY 30, 2013
Private Firm
Legal Polygamy: Ethical Considerations Attendant to Multiple Law Firm Affiliations
The law is clear, for example, that the multiple entities
with which the attorney is affiliated would be viewed as
one entity for conflicts purposes.
On the whole, however, the ethics issues, although
somewhat numerous, can be addressed with relatively
straightforward modifications to client engagement letters and other changes in procedure.
Analysis
Affiliation of a Lawyer With Multiple Firms
BY THOMAS B. MASON
AND
SEMRA MESULAM
his article analyzes the ethics issues that would be
raised by an attorney’s simultaneous affiliation
with multiple law firms. While there are a number
of issues, we believe that none of them is an absolute
bar or even a serious impediment to an attorney’s ability to serve simultaneously as a partner in or ‘‘of counsel’’ to multiple firms.
However, such situations will likely present certain
ethical issues that merit careful consideration. Moreover, as a practical matter, the ethics considerations attendant to such relationships may limit their frequency.
T
Thomas B. Mason, chair of Legal Profession
and Ethics Practice at Zuckerman Spaeder
LLP, Washington, D.C., advises and represents attorneys and law firms on a variety of
malpractice and ethics matters.
Semra Mesulam, an associate at Zuckerman
Spaeder, focuses her practice on white collar criminal matters and complex civil disputes.
The views expressed herein are solely those of
the authors and not of their firm.
Most ethics opinions have concluded that the permissibility of an attorney’s affiliation with multiple law
firms as ‘‘of counsel’’ is determined by the nature of the
relationship between the attorney and the law firm, and
not by any predetermined numerical limit on such affiliations.
In its Formal Ethics Opinion 90-357, the American
Bar Association (ABA) concluded that a lawyer may be
‘‘of counsel’’ to multiple law firms, without limit, provided that the association with each is ‘‘close, regular
[and] personal.’’1 ABA Formal Ethics Op. 90-357 (1990)
at 3.
The California State Bar has adopted the reasoning of
ABA Opinion 90-357 to conclude that ‘‘the number of
‘of counsel’ relationships in which a member or law
firm may serve is limited not by any strict numerical
standard. Instead, the number of such relationships is
limited by strict observance of the qualitative criteria
[that such relationships must be ‘close, personal, con1
Note that this opinion reversed the ABA’s prior stance on
the issue, set forth in ABA Formal Ethics Opinion 330 (1972),
that a lawyer could not be of counsel to more than two firms.
This view was based on the Committee’s opinion that the
‘‘close, regular, and personal relationship’’ that is the requisite
characteristic of the ‘‘of counsel’’ relationship could not exist
on a plural basis.
COPYRIGHT 姝 2013 BY THE AMERICAN BAR ASSOCIATION AND THE BUREAU OF NATIONAL AFFAIRS, INC.
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2
tinuous, and regular’].’’ California Formal Ethics Op.
1993-129 (1993) at 3.
Similarly, in Opinion 2008-1 (2008), the Ohio Supreme Court Board of Commissioners on Grievances
and Discipline concluded that ‘‘a lawyer in a law firm
may be ‘of counsel’ to another law firm so long as the
requisite continuing relationship exists between the
lawyer and the law firm.’’ Id. at 1.
The requisite continuing relationship is ‘‘other than
as a partner or associate or its equivalent and is more
than a mere forwarder or receiver of legal business,
more than a one-time advisor/consultant relationship,
and more than a one-case relationship.’’ Id. Instead, the
relationship must be ‘‘continuing, close, regular and
personal.’’ Id. But see Iowa Ethics Op. 87-09 (1987) (It
is ‘‘improper’’ for an attorney to serve as of counsel to
more than one law firm in Iowa); Texas Ethics Op. 402
(1981) (‘‘an attorney may not be ‘Of Counsel’ to more
than two firms.’’). 2
A lawyer who practices at two firms has fiduciary
duties to both of them.
As a practical matter, even in the absence of a numerical limit to the permissible number of an attorney’s
of counsel affiliations, ‘‘[t]here is, to be sure, some point
at which the number of relationships would be too great
for any of them to have the necessary qualities of closeness and regularity . . . but the controlling criterion is
‘close and regular’ relationships, not a particular number.’’ ABA Formal Ethics Op. 90-357 at 3. See also
Michigan Informal Ethics Op. RI-102 (1991)
(‘‘[a]lthough there is no ethical guidance regarding the
maximum number of such affiliations, it is difficult to
conceive of a situation in which a lawyer or law firm
could establish numerous ‘of counsel’ affiliations and
still maintain the required close, regular and personal
contact with each affiliated lawyer or law firm.’’).
Several ethics opinions have concluded that a lawyer
with an ‘‘of counsel’’ relationship to one firm can simultaneously practice law in a second firm that bears that
lawyer’s name. See, e.g., District of Columbia Ethics
Op. 338 (2007) (‘‘When a former partner continues to
render legal services to the firm’s clients, that firm may
retain the former partner’s name in the firm name, even
though the former partner also practices in a new firm
with a name that also includes his name.’’); New York
City Formal Ethics Op. 1995-9 (1995) (a lawyer may be
‘‘an active name’’ partner in one firm while being ‘‘of
counsel’’ to another firm provided that the lawyer maintains ‘‘a close, regular, personal relationship’’ with the
latter firm).
2
Texas Op. 402 (1981) was explicitly based on ABA Formal
Op. 330 (1972), which was reversed by ABA Formal Op. 90-357
(1990).
Similarly, an attorney can be a partner in one law
firm and of counsel to another.
In Opinion 338, the Washington D.C. Bar Legal Ethics Committee stated that ‘‘[a] partner may have an ‘of
counsel’ relationship with one firm and be a partner in
a different firm,’’ provided that the ‘‘of counsel’’ relationship is ‘‘regular and continuing.’’
The Association of the Bar of the City of New York
Formal Opinion 1995-9 notes that ‘‘it is possible, although not usual, for a lawyer to satisfy the requirements to serve as both partner in one firm and ‘of counsel’ to another.’’ See also Ohio Supreme Court Ethics
Op. 2004-11 (2004) at 4 (‘‘A member, associate, partner,
shareholder or an attorney employee of a multi-lawyer
law firm may serve as ‘of counsel’ to another lawyer or
law firm.’’).
A number of ethics opinions have also stated that a
lawyer may be a partner in two different law firms.
‘‘[T]he prevailing view among the various jurisdictions
that have considered these issues is that a lawyer is not
prohibited from being a partner in more than one firm
if the firms are treated as one for imputation of conflicts.’’ District of Columbia Op. 338 (footnote omitted).
See also Philadelphia Ethics Op. 2001-5 (2001) (‘‘there
is nothing unethical in the Rules per se about an attorney practicing as a partner or member in more than one
firm at the same time.’’); New York City Formal Ethics
Op. 1995-9 (‘‘It is not per se improper for attorneys to
be members of two partnerships, in two jurisdictions’’);
Maryland Ethics Op. 88-45 (1988) (lawyer may be a
partner in multiple firms although such a scenario is
‘‘fraught with many potential ethical problems’’); New
Jersey Ethics Op. 637 (1990) (New Jersey lawyer may
have a solo practice and also be a partner in a law firm
with New York lawyers). But see Ohio Supreme Court
Ethics Op. 97-2 (1997) at 2 (‘‘an attorney should not
practice with more than one law firm as a partner or associate.’’).
There is also substantial authority that a law firm
may be a member of or ‘‘of counsel’’ to another firm.
ABA Formal Ethics Op. 90-357 (reversing prior opinion,
states ‘‘[we] do[] not now perceive . . . any reason of
policy why a firm should not be of counsel to another
firm.’’); Maryland Ethics Op. 88-45; New York City Formal Ethics Op. 1995-8 (1995).
Fiduciary Duties to Multiple Firms
A lawyer—whether a partner, associate or of
counsel—has a fiduciary duty to any law firm in which
the lawyer practices. When a lawyer practices at two
firms, the lawyer has fiduciary duties to both firms.
The lawyer and the firms involved need to have a
consistent approach regarding client and other business opportunities. For example, if a prospective client
comes to a lawyer who practices at multiple firms,
which firm gets the engagement? Does the lawyer who
has a solo practice, but is also associated with a multilawyer law firm, violate a fiduciary duty to the latter if
the lawyer sends the best and most lucrative cases to
his solo practice?
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These are not insurmountable issues but they need to
be discussed and an approach for allocating new engagements and prospective clients should be agreed
upon in advance.
An additional complication can arise where a firm’s
partnership agreement prevents partners from engaging in outside business or professional activities, or
when such agreements provide that the income derived
from any outside activity involving the practice of law
should be paid to the firm. See, e.g., Leslie D. Corwin
and Arthur J. Ciampi, LAW FIRM PARTNERSHIP AGREEMENTS
§ 3.04[2] (2012).
In such a situation, a carefully drafted side letter to
the standard employment agreement may be necessary
to allow an attorney to pursue or maintain multiple affiliations.
Conflicts Checking
Most ethics opinions across jurisdictions have adopted the ABA’s view that ‘‘the effect of two or more
firms sharing an of counsel lawyer is to make them all
effectively a single firm, for purposes of attribution of
disqualifications.’’ ABA Formal Ethics Op. 90-357.
See, e.g., District of Columbia Ethics Op. 338 (‘‘the
lawyer’s ‘of counsel’ relationship with both firms effectively makes the two firms a single firm for conflict of
interest purposes’’); New York City Formal Ethics Op.
1995-8 (‘‘ ‘of counsel’ relationships are treated as if the
‘counsel’ and the firm are one unit’’); Philadelphia Ethics Op. 2001-5 (‘‘the conflict of any member of any of
the involved firms becomes the conflict of all of the
members of all of the involved firms’’).
Similarly, where one law firm is of counsel to another
firm, conflicts of one will be imputed to the other. See,
e.g., New York State Ethics Op. 793 (2006) at 4 (conflicts of one firm are imputed to any other firm with
which it shares an of counsel relationship).
Nor is the implementation of a ‘‘screen’’ sufficient to
avoid the imputation of conflicts to all firms and attorneys with which an attorney is affiliated. New York
State Ethics Op. 876 (2011) (conflicts imputed to an attorney who is of counsel to a law firm will also be imputed to all attorneys in that law firm, and a ‘‘screen’’
cannot avoid the imputation of such conflict).’’
However, note that not all attorney affiliations give
rise to the imputation of conflicts. See, e.g., Oregon Ethics Op. 2005-155 (2005) (‘‘the Of Counsel relationship
can and should be distinguished from the situation in
which law firms, or a lawyer and a law firm, associate
with each other or are employed as co-counsel on specific cases. An occasional collaboration with no indicia
sufficient to establish a de facto law firm among the
lawyers will avoid the implication that they are members of the same firm,’’ and will thus avoid their treatment as a single firm for conflicts purposes.)
The trickier issue is getting client permission to circulate conflict information. See, e.g., Philadelphia Ethics Op. 2001-5 (‘‘the dictates of client confidentiality under Rule 1.6 require that each firm obtain a client’s or
potential client’s permission to circulate enough information outside the firm to the other firms involved in
order to do the required conflict check.’’). See also District of Columbia Ethics Op. 303 (2001).
Information that is in the public domain usually does
not pose a confidentiality issue, but information about a
client’s confidential plans or intentions, such as a plan
ABA/BNA LAWYERS’ MANUAL ON PROFESSIONAL CONDUCT
to file a trade complaint, petition or other action, however, would likely be covered by confidentiality rules.
New ABA Model Rule 1.6(b)(7) might help to address
these concerns. The rule, adopted by the ABA in 2012,3
permits a lawyer to
reveal information relating to the representation of a
client to the extent the lawyer reasonably believes necessary’’ in order to ‘‘detect and resolve conflicts of interest
arising from the lawyer’s change of employment or from
changes in the composition or ownership of a firm, but
only if the revealed information would not compromise
the attorney-client privilege or otherwise prejudice the
client.
ABA Model Rule 1.6(b)(7) (2012). Although Rule
1.6(b)(7) is explicitly concerned with an attorney’s
change of employment from one firm to another, its
logic would appear to apply to a situation where an attorney is affiliated with multiple firms simultaneously.
The new rule ‘‘recognizes that lawyers in different
firms may need to disclose limited information to each
other to detect and resolve conflicts of interest,’’ a situation that clearly applies where an attorney has multiple affiliations. ABA Model Rule 1.6 cmt. [13]. Note
however, that such a disclosure must be very limited,4
and is subject to the attorney-client privilege.5
Fee Sharing
The ethics rules allow client fees to be apportioned in
any manner within a firm without disclosure to or approval from the client. However, the ethics rules contain disclosure and client approval requirements when
fees are shared between different firms.
These requirements are set forth in ABA Model Rule
1.5(e). This rule allows the division of a fee between different firms either (a) in proportion to the ‘‘services performed’’; or (b) in some other proportion provided that
each firm agrees to assume ‘‘joint responsibility for the
representation.’’6 ABA Model Rule 1.5(e) also requires
that the identity of the lawyers or law firms who will
participate in the representation of the client and the division of responsibility be disclosed in writing to the cli3
Note that, as of this writing, Rule 1.6(b)(7) has been adopted in only one jurisdiction (Delaware).
4
‘‘Any such disclosure should ordinarily include no more
than the identity of the persons and entities involved in a matter, a brief summary of the general issues involved, and information about whether the matter has terminated. Even this
limited information, however, should be disclosed only to the
extent reasonably necessary to detect and resolve conflicts of
interest that might arise from the possible new relationship.’’
ABA Model Rule 1.6 cmt. [13].
5
Moreover, the disclosure of any information is prohibited
if it would compromise the attorney-client privilege or otherwise prejudice the client (e.g., the fact that a corporate client is
seeking advice on a corporate takeover that has not been publicly announced; that a person has consulted a lawyer about
the possibility of divorce before the person’s intentions are
known to the person’s spouse; or that a person has consulted
a lawyer about a criminal investigation that has not led to a
public charge).
6
‘‘Joint responsibility’’ means that both firms are responsible to the client for the representation in a malpractice sense
even though one firm may do all of the work. This arrangement is typically used in contingency fee cases to allow a referring lawyer to receive a greater share of the proceeds than
the quantum of the referring lawyer’s services would otherwise justify.
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ent and that the client give informed consent to the entire fee-sharing arrangement.
Screening isn’t enough to avoid imputation of
conflicts to all firms and attorneys with which a
lawyer is affiliated.
The authorities are split concerning whether compensation to an ‘‘of counsel’’ lawyer who is also affiliated with another firm requires compliance with feesharing restrictions.
Several ethics opinions have concluded that feesharing restrictions do not apply to attorneys who are of
counsel. See Ohio Supreme Court Ethics Op. 2008-1
(2008) (payments to of counsel lawyers should not be
considered as fee-sharing between lawyers); Texas Ethics Op. 450 (1987) (a lawyer who is of counsel is ‘‘appropriately treated as a member of the firm’’ and thus
‘‘may share in the fee income of the firm.’’); New York
City Formal Ethics Op. 1996-8 (1996) (fee sharing restrictions do not apply to attorneys who are ‘‘properly
designated as ‘of counsel.’ ’’); Maine Ethics Op. 175
(2001) (fee sharing restrictions do not apply to a lawyer
who is ‘‘of counsel’’).
But see South Dakota Ethics Op. 90-9 (1990) (‘‘the ‘of
counsel’ lawyer in South Dakota is not a member of a
firm and therefore any division of fees must satisfy Rule
1.5(e)’’); California Formal Ethics Op. 1986-88 (1986) at
5 (because an ‘‘of counsel’’ relationship to a firm is not
that of a partner or an associate, the fee-sharing rules
apply); District of Columbia Ethics Op. 151 (1985) (concluding that an ‘‘of counsel’’ lawyer needs to comply
with Rule 1.5’s fee-sharing provisions unless the lawyer’s relationship to the firm is like that of a partner or
an associate; District of Columbia Ethics Op. 197 (1989)
(concluding that fee-sharing provisions applied where a
lawyer was a partner in one firm and of counsel to another).7
7
The authors’ view is that the District of Columbia authority on this subject is outmoded and obsolete. The language of
the rule then in effect required compliance with the feesharing rules when fees were shared with a lawyer ‘‘who [was]
not [a] partner[] or associate[] of [the lawyer’s] firm or law office.’’ DR 2-107(A). The current D.C. Rule 1.5(e) says nothing
about ‘‘partners’’ or ‘‘associates’’ and applies only to ‘‘lawyers
not in the same firm.’’ Comment [1] to D.C. Rule 1.10 states
that ‘‘[w]hether two or more lawyers constitute a firm . . . can
depend on the specific facts. . . . For example, two practitioners who share office space and occasionally consult or assist
each other would not be regarded as constituting a firm. However, if they present themselves to the public in a way suggest-
Compliance with the fee-sharing provisions of Rule
1.5(e) can typically be addressed at the outset of an engagement and satisfied with disclosure and consent in
the client engagement letter.
That letter should disclose that lawyers from multiple
firms will be working on the client’s matter and that the
division of fees between the two firms will be in proportion to the services performed by the various lawyers,
or under some other arrangement that is permitted under the rules. In some jurisdictions, like Washington,
D.C., the letter should also describe, to the extent possible, the name of the lead or supervising attorney, and
what the roles of the other lawyers on the team are
likely to be.8 Finally, the letter should request written
client consent to the fee-sharing arrangements, typically by countersigning the engagement letter.
Compliance With Rule 7.1
ABA Model Rule 7.1 prohibits a lawyer from
‘‘mak[ing] a false or misleading communication about
the lawyer or the lawyer’s services.’’
To the extent that the affiliations and identities of the
attorneys who work on a particular representation may
be material to a client, a disclosure in the engagement
letter—such as the one already required for fee-sharing
purposes—will likely suffice to avoid difficulty in this
regard.
Some jurisdictions might require additional disclosures on firm stationery. See, e.g., Pennsylvania Ethics
Op. 2005-13 (‘‘[a]n attorney can be ‘of counsel’ to more
than one firm, provided there is a disclosure on the letterhead so as to avoid confusion.’’).
Conclusion
The ethics authorities allow a lawyer to affiliate with
multiple law firms simultaneously. The various affiliations discussed above all require that the multiple firms
with which the lawyer is affiliated be viewed as one entity for conflicts purposes. There may be issues concerning sharing confidential information necessary to
clear conflicts. Those issues can be addressed by client
consent.
With regard to fee sharing, firms should be prudent
and follow the local requirements. Careful wording in
the firms’ standard engagement letters may be the best
vehicle to address these issues. We urge caution in situations where a client could claim that they were misled
to believe that, for example, a particular firm or attorney would not be involved in a given matter. These
types of misunderstandings can lead to disputes or otherwise exacerbate friction between attorney and client.
ing that they are a firm, they should be regarded as a firm for
purposes of the Rule.’’
8
D.C. Rule 1.5(e)(2) requires that the client be advised ‘‘of
the identity of the lawyers who participate in the representation [and] of the contemplated division of responsibility.’’
Reproduced [or Adapted] with permission from the ABA/BNA Lawyers’Manual on Professional
Conduct, Vol. 29, No. 3 (January 30, 2013). Copyright 2013 the American Bar Association and The
Bureau of National Affairs, Inc. (800-372-1033) www.bna.com.
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COPYRIGHT 姝 2013 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
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ISSN 0740-4050