Hello everyone and happy 2015 to you and yours! This first Ethics Alert of the new year will discuss the recent Louisiana Supreme Court which concluded that “of counsel” lawyers are associated with that law firm for purposes of potential conflicts of interest analysis. The case is In re Randy J. Fuerst, No. 2014-B-0647 (La. SC 12/9/14). The Court’s opinion is here: https://www.ladb.org/DR/?
According to general practice in the United States, a law firm can identify one or more lawyers as having an “of counsel” relationship with the firm. ABA Formal Op. 90-357 (May 10, 1990) states that, although the application of the term is varied, the “core characteristic (of the) title ‘counsel’ is, as stated in Formal Opinion 330, a ‘close, regular, personal relationship’; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term “associate,” which is to say a junior non- partner lawyer, regularly employed by the firm.
The ABA opinion notes that there is no prohibition against a law firm being “of counsel” to another law firm; however, “of counsel” relationships do not include the following: 1) “a relationship involving only an individual case,” 2) a relationship of “forwarder or receiver of legal business,” 3) a relationship “involving only occasional collaborative efforts among otherwise unrelated lawyers or firms,” or 4) a relationship as “an outside consultant.” ABA Formal Opinion 90-357 is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf
In the recent Louisiana Supreme Court opinion, the lawyer was found guilty of violating the Louisiana Bar Rules by engaging in a sexual relationship with a current client and he was also found to have engaged in a conflict of interest in violation of Louisiana Bar Rule 1.10 “by referring a (current divorce) client to another lawyer in the law firm with which he was associated as ‘Of Counsel.’” The opinion found that “(a) lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions”; therefore, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”
Bottom line: According to this Louisiana disciplinary opinion, a lawyer who is “of counsel” to a law firm is considered to be a member of that law firm for purposes of conflict of interest analysis; therefore, a lawyer who has a conflict of interest and must withdraw from representing a client cannot refer that client to a law firm in which he has an “of counsel” relationship since this conflict is imputed to the law firm and all of its lawyers. In addition, in this case, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”
Be careful out there.
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Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
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Clearwater, Florida 33759
Office (727) 799-1688
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