FLORIDA BAR ETHICS OPINION
April 30, 1995
Advisory ethics opinions are not binding.
An attorney who is “of counsel” to a law firm is considered to be a member of that firm for
purposes of the fee-division rules only if that attorney practices through that firm exclusively.
71-49, 72-29, 75-41; ABA Formal 90-357, Arizona 86-3; California 1986-88;
District of Columbia 151 and 197; New Jersey 476; Maryland 87-37
The Professional Ethics Committee has been asked to address two inquiries concerning
the division of fees between an “of counsel” attorney and a law firm:
A former partner in a law firm is “of counsel” to the firm. The attorney
has scaled back his practice, but will continue to practice through the firm. The
attorney will not practice law at any other firm. The attorney requests an opinion
whether the fee division rules apply to his compensation from the firm.
A law firm has inquired whether the fee division rules govern the division
of fees between the law firm and an attorney who is “of counsel” when the firm
refers a personal injury case to the “of counsel” lawyer. The “of counsel”
attorney has an independent practice, although the attorney spends some time
working out of the inquiring firm’s office. This attorney too requests an opinion
concerning the applicability of the fee division rules in this situation.
Traditionally the term “of counsel” was used to designate a semi-retired lawyer who was
formerly a regular member of the law firm. Opinion 72-29. The permissible use of the term has
since been expanded to include a lawyer who maintains a close, continuing relationship with a
law firm in a capacity other than that of a partner or an associate. Opinions 71-49; 75-41; ABA
Formal Opinion 90-357. Nevertheless, the relationship must be more than a mere referral
arrangement. Opinion 72-29.
No existing formal opinions of this committee discuss whether an attorney who is “of
counsel” to a firm is considered to be a member of the firm for purposes of the fee division rules.
A number of other jurisdictions have considered this issue, however, and many have concluded
that fee-splitting with an “of counsel” lawyer is limited by that jurisdiction’s fee division rules.
See, e.g., Arizona Opinion 86-3; California Opinion 1986-88; District of Columbia Opinions 151
and 197; New Jersey Opinion 476; Maryland Opinion 87-37.
District of Columbia opinions 151 and 197 conclude that rules governing the division of
fees between attorneys in different firms apply unless the “of counsel” attorney functions as a
member of the firm and does not have another practice. We agree that, for the purposes of the
fee division rules, an attorney is in the “same firm” to which the attorney is “of counsel” only if
the attorney is “of counsel” in the traditional sense -- that is, only if the attorney is affiliated with
and practices through that one firm exclusively.
Our conclusion finds support in the fact that the Supreme Court of Florida has clearly
indicated its intention to regulate fee-division practices in contingent fee personal injury-type
matters. The Court has declared that, even in true co-counsel situations, circuit court
authorization must be obtained if the fee is to be divided in a manner other than 25% (to
secondary attorney) - 75% (to primary attorney). Rule 4-1.5(f)(4)(D)(iii).
Therefore, we conclude that the fee division rules do not apply to the former law partner
who continues to work exclusively at the law firm in an “of counsel” capacity. The referral of a
personal injury matter to the “of counsel” attorney who continues a practice outside the firm,
however, is governed by the fee division rules set forth in subdivisions (g) and (f)(4)(D)(iii) of