Ethics Hotline & Opinions

Ethics Docket No. 1990-38

MARYLAND STATE BAR ASSOCIATION, INC.

COMMITTEE ON ETHICS

ETHICS DOCKET NO. 1990-38

In-house corporate attorney as "of counsel" to law firm

 

You state that you are employed by a corporation as Assistant General Counsel and Assistant Secretary. In this capacity you provide legal advice to the corporation, represent it before administrative agencies and courts and are responsible for selecting and evaluating outside counsel.

With the knowledge and consent of your employer and while maintaining your present employment with it, you intend to associate with a private law firm as "of counsel." Through the law firm, you would represent your clients (other than your employer), and you would share in these fees, as well as in those generated through your work for clients of the firm. You will not provide representation to your corporate employer in your capacity with the firm. However, the law firm may represent the corporation from time to time, but you would not share in any fees so generated.

You ask our opinion on the following:

Regarding your first question, the Rules of Professional Conduct do not prohibit an attorney from being employed as "in-house" counsel and at the same time associating as "of counsel" with a private firm. You will note that the Rules make no reference at all to the designation "of counsel." In Docket 79-49 we stated that the "of counsel" designation denotes a close and continuing relationship with a firm, but not as a member of the firm, either as a partner or as an associate. Accordingly, such a designation can be used so long as such a relationship in fact exists.

Regarding your second question, note that Rule 1.7 provides that conflicts of interests due to the lawyer's own interests can be waived by the client, provided: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. However, the "consultation" required by this Rule must "include explanation of … any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved." As long as the corporation's consent is based on such a consultation, we do not see anything unethical about referring legal matters of your employer to the law firm.

References: Ethics Dockets 1979-49

 

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