- Published Articles
- In the Press
- Press Releases
Sign Up for Alerts
Sign up to receive receive industry-specific emails from our legal team.
Sign Up for Alerts
We provide tailored, industry-specific legal updates to our clients and other friends of the firm.
Areas of Interest
November 7th, 2013
Use of “Of Counsel” Title for Lawyers in Foreign Countries
A recent New York City Bar Professional Ethics Committee opinion offers important new guidance to New York law firms on use of the "of counsel" title for lawyers who work in foreign countries. The opinion states that a New York law firm can designate as "of counsel" a New York attorney who resides and practices law overseas, provided the firm complies with three criteria. First, the "of counsel" lawyer must have a "continuing relationship" with the law firm. Second, the use of the "of counsel" title must not be false or misleading in other respects. Third, an "of counsel" lawyer's practice must not constitute the unauthorized practice of law in the foreign country.
As the opinion explains, determining whether a "continuing relationship" exists involves "a multi-factor analysis that depends on the facts and circumstances of each situation." Ethics opinions that analyze this relationship identify a variety of factors that may be examined to determine whether an "of counsel" designation is appropriate. Factors include: whether the lawyer is actively involved in the firm's day-to-day affairs and/or cases; the frequency and nature of the lawyer's communications with the firm; and whether and to what extent the firm's clients use the lawyer's services. The opinion noted, however, that the presence or absence of any of these elements is not conclusive in determining whether the "of counsel" designation is appropriate.
As noted above, the opinion also specified that the "of counsel" designation may not be false or misleading in other respects. As Comment  to Rule 7.5 states, "a lawyer should be scrupulous in the representation of professional status." Protecting the public from being misled about the relationship between the law firm and the "of counsel" attorney is a key consideration. The opinion notes that "by using the of counsel designation, both the law firm and the lawyer are conveying to the public that the lawyer's continuing relationship with the firm is close, regular, and personal."
Finally, if the "of counsel" lawyer's practice in the foreign country constitutes the unauthorized practice of law in that jurisdiction, the law firm may not designate the lawyer as "of counsel." Doing so would likely violate Rule 5.5(b), which prohibits New York lawyers from aiding "the unauthorized practice of law."
If you have any questions about the use of the "of counsel" designation for lawyers in foreign countries, or any other questions about legal ethics and professional responsibility, please contact Nicole Hyland at (212) 826 5552 or email@example.com, Ron Minkoff at (212) 705 4837 or firstname.lastname@example.org or the Frankfurt Kurnit Legal Ethics and Professional Responsibility Group.
(We note that Ms. Hyland, the author of this alert, serves as the Chair of the New York City Bar Professional Ethics Committee.)
Other Legal Ethics and Professional Responsibility Alerts
A Primer On New York’s COVID-19 Executive Orders and What They Mean for Your Practice
This past week, New York has taken a number of steps to restrict movement in and around the State in an effort to contain the COVID-19 crisis. Governor Andrew Cuomo has issued executive orders and the chief judges of the state and federal courts have issued administrative orders that have had a sweeping impact on the legal industry as well as the business community at large. Read more.
March 22 2020
ABA Opinion Limits Restrictions on Departing Partners
There’s important news for law firm leaders who have recently revised partnership and shareholder agreements to restrict partner departures. In ABA Formal Opinion 489, the ABA Standing Committee on Ethics and Professional Responsibility spells out new limits on notice periods, on rules governing communications with clients, and on so-called “ownership” of clients. Here’s what firm managers need to know to stay on the right side of the ethics rules. Read more.
February 6 2020
Frankfurt Kurnit’s Second Annual Litigation Ethics Summit - FKKS Ethics Game Show
To cap off the Second Annual Litigation Ethics Summit our panel challenged some brave audience members to participate in a contest of ethical wits. Read more.
October 30 2019