Opinion 1901

Is a lawyer who is "of counsel" to a law firm considered to be a member of the law firm for purposes of fee splitting pursuant to RPC 1.5(e)?

The committee opined that in order to use the "of counsel" designation, a lawyer must have a regular, frequent and continuing relationship with a law firm such that the lawyer is in fact a member of the law firm. If a lawyer meets that test then there would not be "[a] division of a fee between lawyers who are not members of the same firm" and the requirements of RPC 1.5(e)(2) are not applicable. But, if the lawyer does not meet that test, then the use of the "of counsel" designation is not appropriate and any division of fees between the lawyer and another law firm would be the subject of the requirements of RPC 1.5(e)(2). You are further directed to Formal Opinion 178 that contains a discussion of the appropriate circumstances in which the "of counsel" designation may be used.

Advisory Opinions are provided for the education of the Bar and reflect the opinion of the Committee on Professional Ethics (CPE) or its predecessors. Advisory Opinions are provided pursuant to the authorization granted by the Board of Governors, but are not individually approved by the Board and do not reflect the official position of the Bar association. Laws other than the Washington State Rules of Professional Conduct may apply to the inquiry. The Committee's answer does not include or opine about any other applicable law other than the meaning of the Rules of Professional Conduct.