Denver Bar Association
January 2000
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Of (uv) Counsel (koun'sel)

by Molly Osberg

It started out as a request from a Denver Bar Association member for the simple definition of Of Counsel. 'The only trend you'll find is that there is some growing flexibility in the law field.' Easy enough, right…? Let’s just say that The Docket has never underestimated a story quite as much as this one. What started as a couple of phone calls, turned into a massive calling session to many legal offices in Denver and surrounding areas. Basically what we’ve found is while most firms have an Of Counsel position, no textbook definition of Of Counsel exists. For the most part, the Of Counsel job description is specific to each firm and depends solely on a contract between the attorney becoming Of Counsel and the firm. "The only trend you’ll find is that there is some growing flexibility in the law field," said Stephen Villano, former Of Counsel at Holland & Hart. "The legal system is changing to accommodate the different needs that everyone has." Very generally, a person who is Of Counsel to a firm has the same level of experience and amount of knowledge as a partner, but may not have the responsibilities that a partner has. Most people who are Of Counsel don’t want to be a part of the politics of a firm or have the financial obligation of a partner. Being Of Counsel used to signal that attorneys were winding down their practices, and possibly wanting less responsibility in the office and more responsibility on the golf course. Historically, a lawyer would go to law school, pass the bar, work at a firm for most of his/her professional life and then become Of Counsel to the firm before officially retiring. These days things have changed. Now it’s perfectly common to see attorneys in their late 30s gaining the Of Counsel title as well. According to the ABA/BNA Lawyers’ Manual on Professional Conduct, the following types of individuals are approved to be Of Counsel: retired lawyer, retired judge, withdrawing partner or associate, part-time practitioner, partner on leave of absence, probationary partner-to-be, government official or university professor who is a non-practicing lawyer, or a public official. "Clearly the role has changed now," Sherman & Howard’s John Low said. "The senior definition doesn’t apply anymore. I’m of the old traditional Of Counsel group. I’ve gone through all the steps to get here. Basically, I decided to be Of Counsel because I didn’t want management responsibilities anymore." Many senior Of Counsel lawyers, like Low, are interested in practicing law without being a part of the politics of a firm. The younger generation has joined the Of Counsel ranks for a number of additional reasons. "I assume most of them do it as a means to try out the firm to see if they might be interested in a partnership," said Robert Hawley, Hawley & Hawley. While some Of Counsel attorneys are testing the firm’s waters, the firm may equally be testing the lawyer before making a partnership offer. "I think many people have different aims and goals in life," said Joan Blaik, Of Counsel at Sherman & Howard. "When you’re offered a partnership, it’s a great honor, but different people want different things. I’m a single parent and need to limit my number of hours. That’s the reason Of Counsel works for me." Working fewer hours, enhancing the quality of life outside the office and raising a family is why many lawyers choose the Of Counsel path. Others use it as a stepping stone to partnership. And of course there are a few remaining, who become Of Counsel the old fashioned way. "I’m not sure what Of Counsel means anymore," Low said. "No person or firm defines it the same way.

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