June 12, 2026

President’s Message By Amy Coco

One of the questions that often comes up in my professional responsibility practice concerns titles.

Lawyers use titles every day. Partner. Associate. Counsel. Senior counsel. Of counsel. These titles tell clients, courts, opposing counsel, and the public something about who we are, what our role is, and what responsibilities we have accepted.

But in law practice, titles are not merely matters of etiquette, tradition, or marketing. They are communications about a lawyer’s services. Under Rule 7.1 of the Pennsylvania Rules of Professional Conduct, those communications must be accurate and not misleading.

That is why the familiar title “of counsel” deserves careful attention.

The Pennsylvania Bar Association Committee on Legal Ethics and Professional Responsibility recently issued Formal Opinion 2026-100, Use of the Designation “of counsel.” The opinion confirms what prior PBA, Philadelphia Bar Association, and ABA authorities have long recognized: whether the designation is proper depends on the substance of the relationship, not the label.

An “of counsel” relationship must be close, regular, personal, and continuing. It may describe a retired or semi-retired partner who remains available for consultation, a part-time lawyer associated with a firm on an ongoing basis, a senior lawyer in a permanent role between partner and associate, or a lawyer who regularly provides specialized advice to the firm. It may also describe a lateral lawyer with an expectation of future partnership.

What it cannot describe is just as important. “Of counsel” is not a referral relationship. It is not a one-case collaboration. It is not occasional consulting. And it is not a title to be used simply because lawyers like, respect, or regularly send work to one another.

The distinction matters because the title carries consequences.

First, “of counsel” does not mean partner. Partner is defined in Rule 1.0(g) as an equity owner. An “of counsel” lawyer’s status must be clearly identified on letterhead, websites, and marketing materials. A firm should not use branding, logos, or firm-name conventions that imply common ownership or partnership where none exists.

Second, and perhaps most significantly, “of counsel” has conflict-of-interest consequences. Formal Opinion 2026-100 explains that an “of counsel” lawyer is

generally treated as “associated in a firm” for purposes of Rule 1.10. That means conflicts are imputed in both directions. Concurrent conflicts under Rule 1.7 and former-client conflicts under Rule 1.9 may flow from the firm to the “of counsel” lawyer and from the “of counsel” lawyer back to the firm. Multiple “of counsel” relationships can expand that universe of imputed conflicts across every affiliated firm.

That is where casual use of the title can become dangerous.

A firm may think it is simply giving a respected lawyer a title that reflects collegiality or professional connection. A lawyer may think the designation is a convenient way to remain loosely affiliated with a firm. But if the relationship is not close and continuing, the title may be misleading. If the relationship is close and continuing, the conflicts must be treated seriously.

Third, confidentiality obligations must be addressed. Rule 1.6 requires safeguards to protect client information. Firms entering into “of counsel” arrangements should run comprehensive conflict checks, define file access, address shared electronic systems and infrastructure, and reassess conflicts as new matters arise. Where screening is available under Rule 1.10(b), it must be timely and effective.

Fourth, compensation arrangements should be handled carefully. The method of payment does not determine whether the designation is proper. An “of counsel” lawyer may be paid by salary, hourly compensation, retirement benefits, or another arrangement. But if the lawyer is not treated as part of the same firm for fee purposes, Rule 1.5(e) applies. The client must be advised of and not object to the participation of all lawyers involved, and the total fee must not be illegal or clearly excessive. Blanket or automatic percentage fee-splitting arrangements should be avoided; client consent is matter-specific.

The opinion also provides important guidance for judges and public officials. A sitting judge may not be announced or held out as “of counsel” before retirement. After retirement, a former judge may not use “Judge,” “Honorable,” or “Hon.” in connection with the practice of law, including in an “of counsel” role, because that usage may imply improper influence. Prior judicial service may be described factually, but not in a way that suggests special access or advantage.

Finally, when an “of counsel” relationship ends, clients for whom the lawyer provided more than de minimis legal services must be notified and given the freedom to choose counsel. No notice is required where the matter is over. Joint notification is preferred where practicable. As always, the duties of loyalty, communication, confidentiality, and protection of client property continue.

Before using the title “of counsel,” lawyers and firms should ask:

1. Is the relationship close, regular, continuing, and personal?

2. Are conflicts being checked in both directions and across every “of counsel” affiliation?

3. Do the firm’s letterhead, website, and marketing materials accurately describe the relationship?

4. Are confidentiality safeguards and screening procedures in place where needed?

5. Do fee arrangements comply with Rule 1.5(e), where applicable?

6. If the relationship ends, will affected clients be notified and given a meaningful choice?

“Of counsel” can be a valuable designation. It can support flexible practices, thoughtful transitions, specialized service to clients, and continued connection within the profession. But it is not just a courtesy title. It carries the weight of our professional obligations.

Used accurately, it serves clients, lawyers, and the profession. Used loosely, it creates risk for the lawyer, the firm, and the public.

As lawyers, we should say what we mean. And when we say “of counsel,” we should mean a relationship that is real, understood, and consistent with our duties under the Rules of Professional Conduct.