January 25, 2017 article

The Ups and Downs of Being “Of Counsel”

By Elizabeth Homsy

Once upon a time, in the hallowed yesterdays of the legal industry, being “of counsel” to a firm had a very different meaning than it does now. It meant, generally, that the attorney in question was older or more experienced and didn’t want to deal with the responsibilities and issues that went along with full firm affiliation. There may have been conflicts between the attorney’s clients and another attorneys of the firm, the attorney may have hoped to take his or her practice in another direction, or perhaps the attorney simply wanted to maintain some sort of job while enjoying an early retirement. Since the economic storm of 2008—and the rebound effect it had within the legal industry—the “of counsel” position has changed a great deal.

Nowadays, such attorneys are often younger or earlier in their career than they were before. Law firms frequently employ several of them to spread out work without the added expenses of hiring more lawyers, and more often than not, these fresh attorneys maintain their own tools, such as individual malpractice coverage. Of counsel has become more of a starting place for attorneys who want more experience, something that has led to both opportunities and problems for young law school graduates trying to move forward in their careers. Recently, I myself began to work as “of counsel” to a fantastic litigation team in Chicago, which has proven to be a great learning experience and a wonderful opportunity. However, after discussing the matter with other lawyers in the same or similar roles at other firms, I have discovered there can be pitfalls for young lawyers who take on the role. To address this, we have come up with some guidelines and things to look for in deciding whether a job as “of counsel” is the right choice. This is by no means a comprehensive list, but it should help any young lawyer decide whether “of counsel” is a good next step.

First, how many “of counsel” attorneys are present at the law firm and how long have they been there? Some firms use “of counsel” attorneys to pad their numbers and offer very little in the way of work. This can leave the young affiliate to starve while the firm associates have plenty to do. Others see their “of counsel” workers as new associates whom they don’t have to pay as much. Consequently, these attorneys often get worked extremely hard—and are denied the ability (and one of the absolute gems of being “of counsel”) to seek out clients and work of their own. When looking to take one of these positions, talk to the hiring attorney about the work balance that the prospective firm offers to the new potential hire.

Next, how involved are the more experienced attorneys in the lives of their younger “of counsel” workers? An “of counsel” position can be an incredible place for a young lawyer to learn and grow without the added pressure of billable requirements and firm duties. It can allow a fresher attorney the opportunity to look into areas of law that the firm does not necessarily cater to and help the attorney build confidence in his or her work, while having the stability of a firm association. This is doubly so when the older, more experienced attorneys at a law firm offer the benefit of their own experience. In this sort of relationship, the “of counsel” lawyer can grow much further and faster than on his or her own. Conversely, firms that take on “of counsel” attorneys without intending to mentor or assist them in any way often see troubles stemming from this decision. Overambitious young lawyers may take on too much without a safety net. If the hiring firm takes an interest in its “of counsels,” encourages them, and offers advice and assistance, then the relationship that develops can be incredibly beneficial for all parties involved.

Does the law firm make its resources available to its “of counsel” attorneys? Working in such a position can seem a fantastic opportunity in the right firm. However, if the young “of counsel” attorney is expected to pay for everything, including rent, malpractice insurance, office supplies, and legal research tools, then the possibilities it presents are little better than interning and sometimes worse than hanging a shingle of one’s own. Some expenses are reasonable to expect (such as independent malpractice insurance for cases the “of counsel” attorney takes on that are not under the firm he or she is working with). If the firm offers nothing of its own resources to its young “of counsel,” however, the job may not be worth the expenses of the association.

Finally, to what degree is independence encouraged at the firm in question? More than any other young lawyers’ position, the job as “of counsel” offers an opportunity to discover areas of law that pique your interest. If you work for a firm specialized in criminal law, this could allow you to take on some personal injury or foreclosure cases to test the waters. For a corporate “of counsel,” the opportunity to do work in estates or trusts might be a benefit. To the enterprising law firm, its “of counsel” attorneys can build entirely different areas of practice that the group can later capitalize on or, conversely, that the “of counsel” can later take to another firm if their interests are too divergent. In an age when attorneys are encouraged to specialize, this is a great way for a firm to offer alternative services while maintaining its specialization. Conversely, law firms that view their “of counsels” as unable to function without massive oversight offer no opportunities that a simple associate job cannot provide.

The best “of counsel” positions I have seen offer a good balance between oversight by older, more experienced attorneys and independence for the younger “of counsel” attorneys. Young lawyers seeking to improve their standing in their profession while maintaining independence in how they choose their clients can benefit greatly from such a relationship—so long as they avoid the pitfalls of less scrupulous law firm practices.

Keywords: litigation, solo practitioners, small firms, of counsel

Elizabeth Homsy is of counsel at the Carmen D. Caruso Law Firm in Chicago, Illinois.

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