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Commentary: Becoming ‘of counsel’ a win-win situation

The stereotypical of counsel attorney is the former partner who comes into the office to share his wisdom when he’s bored with retirement.

Milwaukee attorney Jonathan P. Groth, in his 30s and the prime of his career, is proof that lawyers need not be AARP members to leverage successfully the of counsel relationship to maximize the bottom line of his practice. (Not that there’s anything wrong with the AARP. I’m only a few years away from receiving the AARP solicitations myself, and will seriously consider any sweet deals they want to offer me on car insurance.)

The second definition of “of counsel” in Black’s Law Dictionary is “a lawyer who is affiliated with a law firm, though not as a member, partner or associate.” This category is for the above-described retiree.

But did you know that the first definition is: “A lawyer employed by a party in a case; especially one who — although not the principal attorney of record — is employed to assist in the preparation or management of the case … ”?

Groth, a plaintiff’s personal injury lawyer who, for now, concentrates on motor vehicle negligence cases — decided to tap into his legal network when starting his own firm. He pursued the of counsel relationship with a firm that handles a large volume of such cases, and needs help with working them up for settlement or trial.

Here’s what’s in it for them: The firm isn’t interested in hiring and training an associate, and paying a salary and full benefits, or taking on another partner and dividing profits. Groth can be compensated on a case-by-case basis.

And, because Groth has substantial trial experience, he’ll essentially be another arrow in the quiver for the firm — insurers and their counsel will know they’re serious when they say they’re willing to try the case if it cannot settle on reasonable terms.

Here’s what’s in it for Groth: He wants the autonomy of running his own practice; it will be an instant complement to the book of business he already has for when he opens Groth Law Office on March 1; and, in addition to other compensation, he’ll be provided with office space and access to the firm’s amenities.

An immediate win-win, he says, noting that he’s looking to keep his overhead low as he begins the journey as a solo in a tough economy, where his compensation is somewhat unpredictable because his cases are largely contingency work.

Moreover, he’s looking to expand his practice concentration into business litigation as well, and is hopeful that the arrangement will facilitate a speedier mastery of the learning curve, when he isn’t as pressured economically as a new solo might otherwise be.

An important consideration, Groth observes, is to determine whether you’re going to be added to the letterhead and advertised to the world as of counsel to a firm. If so, you’re taking on all of that firm’s conflicts. That doesn’t apply if you’re of counsel on an occasional basis. Check out Formal Ethics Opinion 93-1 at wisbar.org. Because he doesn’t want to limit himself in that way, they’re not adding Groth to the shingle.

While you’re at the bar’s ethics page, it also couldn’t hurt to read Formal Opinion E-00-02: Sharing Office Space with Unrelated Entities — State Bar of Wisconsin Ethics Committee, if you’re considering that, and E-00-01: Dividing Fees Between Lawyers Not in the Same Firm.

Now maybe it’s time you took another look at your LinkedIn attorney connections, with an eye toward whether the of counsel relationship, with attorneys of any age, could help you or your firm.

Jane Pribek is a former family law attorney and former editor of Wisconsin Law Journal. Since moving to Nashville, she has been our editor-at-large. She can be reached at janepribek@bellsouth.net.

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