Louisiana Supreme Court concludes that “of counsel” lawyers are associated with that law firm for conflicts of interest analysis

Hello everyone and happy 2015 to you and yours! This first Ethics Alert of the new year will discuss the recent Louisiana Supreme Court which concluded that “of counsel” lawyers are associated with that law firm for purposes of potential conflicts of interest analysis. The case is In re Randy J. Fuerst, No. 2014-B-0647 (La. SC 12/9/14). The Court’s opinion is here: https://www.ladb.org/DR/?

According to general practice in the United States, a law firm can identify one or more lawyers as having an “of counsel” relationship with the firm. ABA Formal Op. 90-357 (May 10, 1990) states that, although the application of the term is varied, the “core characteristic (of the) title ‘counsel’ is, as stated in Formal Opinion 330, a ‘close, regular, personal relationship’; but a relationship which is neither that of a partner (or its equivalent, a principal of a professional corporation), with the shared liability and/or managerial responsibility implied by that term; nor, on the other hand, the status ordinarily conveyed by the term “associate,” which is to say a junior non- partner lawyer, regularly employed by the firm.

The ABA opinion notes that there is no prohibition against a law firm being “of counsel” to another law firm; however, “of counsel” relationships do not include the following: 1) “a relationship involving only an individual case,” 2) a relationship of “forwarder or receiver of legal business,” 3) a relationship “involving only occasional collaborative efforts among otherwise unrelated lawyers or firms,” or 4) a relationship as “an outside consultant.” ABA Formal Opinion 90-357 is here: http://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/formal_opinion_90_357.authcheckdam.pdf

In the recent Louisiana Supreme Court opinion, the lawyer was found guilty of violating the Louisiana Bar Rules by engaging in a sexual relationship with a current client and he was also found to have engaged in a conflict of interest in violation of Louisiana Bar Rule 1.10 “by referring a (current divorce) client to another lawyer in the law firm with which he was associated as ‘Of Counsel.’” The opinion found that “(a) lawyer who is ‘Of Counsel’ to a law firm is considered to be a member of the firm for purposes of analyzing imputed disqualification questions”; therefore, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

Bottom line: According to this Louisiana disciplinary opinion, a lawyer who is “of counsel” to a law firm is considered to be a member of that law firm for purposes of conflict of interest analysis; therefore, a lawyer who has a conflict of interest and must withdraw from representing a client cannot refer that client to a law firm in which he has an “of counsel” relationship since this conflict is imputed to the law firm and all of its lawyers. In addition, in this case, the lawyer “was required to refer the divorce case to a lawyer outside his law firm prior to the time that he became involved in a personal relationship with her.”

Be careful out there.

Disclaimer: this e-mail is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
2454 McMullen Booth Road, Suite 431
Clearwater, Florida 33759
Office (727) 799-1688
Fax (727) 799-1670

About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
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