Of Counsel – Term, Meaning and Career Path
The title “Of Counsel” refers to a special position within law firms, positioned between the traditional partner structure and employed attorneys. This designation is particularly used in larger entities, but in recent years it has also gained importance in the context of medium-sized companies and law firms.
Definition and Position within the Firm
The term “Of Counsel” originates from the Anglo-Saxon legal sphere and has become established in German-speaking countries, particularly since the 1990s. It is used to designate a person who is connected to the firm in a special way, without holding partner status or having a fixed corporate stake.
Of Counsel take on advisory, supportive, or partially autonomous responsibilities. They can be employed full-time or part-time, often have their own client responsibility, or assume specific tasks, such as managing client relationships or developing strategic issues.
Differentiation from Other Career Levels
Of Counsel is to be distinguished from other law firm positions such as Associate or Partner. While associates are typically permanently employed attorneys working towards possible promotion to partner, Of Counsel assumes an intermediate function. The title can be either a stepping stone to partnership status or an alternative for experienced individuals who do not wish to become partners immediately. Sometimes former partners continue as Of Counsel after leaving active management.
Legal Framework and Admission
In Germany and other countries, the Of Counsel position is not exclusively regulated by law. Rather, it is a professional title granted as part of the internal organization of the law firm. Admission to the bar remains a basic requirement, but there are no specific criteria for awarding the title Of Counsel. International firms may impose additional criteria or internal rules, such as minimum years of professional experience or special qualifications.
Unlike the status of partner, which is stipulated in corporate law agreements, the title Of Counsel is freely configurable and subject to the individual firm’s structure.
Historical Development of the Of Counsel Position
The Of Counsel function originated in the USA as a response to changing career models and the diversification of legal services. It was originally intended for experienced attorneys transitioning into retirement or those no longer wanting to face the time and performance pressures of a partnership. Over the years, the title has been increasingly applied to other special roles, such as individuals with pronounced expertise or permanent external consultants.
In German-speaking countries, the title was introduced mainly through the expansion of international law firms. Today, Of Counsel offers a flexible structuring option, opening up various avenues for cooperation for law firms.
Requirements and Prerequisites
Professional Experience
In most cases, the title Of Counsel is granted to experienced attorneys who have distinguished themselves through many years of work in the field, as well as outstanding performance within the firm or other professional settings. They generally possess several years of professional experience, often with a background as a partner, judge, in-house counsel, or in comparable senior positions.
Personal and Professional Competencies
In addition to sound professional knowledge, strong social skills, personal responsibility, and the ability to assume client responsibility or manage complex projects are particularly expected. Furthermore, the ability to attract and retain clients plays a central role.
Contractual Arrangements and Compensation
The contractual arrangements for an Of Counsel position are usually individual, but typically based on a combination of fixed remuneration and performance-based components. An entrepreneurial shareholding as with partners generally does not exist; corporate articles’ duties and rights depend on the individual case.
Typical Tasks and Areas of Responsibility
Client Support and Advisory
Of Counsel regularly take on the support of selected cases, often in areas of particular complexity or strategic importance. They may serve as contact persons for clients and independently handle their legal representation.
Strategic Development and Firm Management
Of Counsel are frequently involved in developing new practice areas, training and mentoring associates, or shaping the firm’s strategic direction. In some instances, they assume project-based roles, such as setting up new offices or handling larger client matters.
Professional Representation and Outreach
Of Counsel often perform roles in representing the firm professionally, for example through publications, specialist lectures, or involvement in professional committees. Especially in international law firms, they are used to maintain networks and build interdisciplinary contacts.
Prospects and Progression to Higher Career Levels
The Of Counsel position can open up various opportunities. In some firms, it serves as a transitional stage on the way to equity partnership. In others, it is a permanent final position that can be held for many years. Of Counsel can also serve as a move into an advisory role, for instance after handing over operational tasks.
There is no clear career ladder in the classic sense for Of Counsel; rather, progression depends on individual agreements with the firm and personal objectives.
Frequently Asked Questions about the Of Counsel Career Path
Who can use the title Of Counsel?
In principle, the title is open to experienced attorneys who have already demonstrated significant responsibility and expertise. The position is usually awarded after several years of qualified professional practice.
Is there an entrepreneurial shareholding in the firm?
Of Counsel are typically not shareholders in the firm unless specifically agreed upon. In this respect, the position differs from that of a partner.
How does Of Counsel differ from Counsel, Senior Associate, or Advisor?
“Of Counsel” is an internationally recognized term and stands for an independent role with usually more decision-making authority and client responsibility than a Senior Associate or Counsel. However, the exact structure depends greatly on the respective law firm.
What are the advantages of the position?
The role offers experienced attorneys the opportunity to contribute their know-how, manage cases flexibly, and assume responsibility without necessarily having to take on the administrative or corporate tasks of a partner.
Is there a minimum or maximum period for serving as Of Counsel?
There are no fixed minimum or maximum periods. The duration is usually determined individually within the framework of the contractual relationship with the firm.
Is it possible to move from Of Counsel to partnership?
A transition is generally possible and in some firms is even the standard route. A prerequisite is regularly the mutual desire and fulfillment of the internal requirements for acceptance among the partners.
The Of Counsel position represents a flexible and versatile career path, enabling experienced attorneys to apply their competencies in an independent role and to actively contribute to shaping the firm’s development.
Frequently Asked Questions
What tasks do Of Counsel perform in a law firm from a legal perspective?
Of Counsel primarily support law firms through their advisory involvement in cases, without formally being partners or employed attorneys. They often bring specialized expertise or many years of experience in specific legal fields. Their activities range from preparing complex legal opinions and developing strategies for significant cases to assisting with litigation or out-of-court negotiations. They are usually not primarily responsible for acquiring clients or handling comprehensive client matters, but act as advisors, often with a focus on legal expertise and quality assurance. Training and supervision of junior colleagues is also regularly part of their duties, always in compliance with all professional regulations.
What is the liability relationship of Of Counsel to clients?
The liability relationship largely depends on the specific arrangement of the collaboration. If the Of Counsel acts independently, they can become contracting parties to the clients and are then liable under § 280 BGB as well as the professional obligations under § 43 BRAO, especially the professional liability insurance requirement under § 51 BRAO. If, on the other hand, the Of Counsel works exclusively for the firm, the firm is primarily liable to clients, while internal recourse claims may exist against the Of Counsel. Regardless of the contractual arrangement, the information obligations under § 49b BRAO and the duty of care under § 276 BGB must be observed.
What employment law specifics must be considered for Of Counsel engagements?
Legally, the key issue is the type of employment relationship. Of Counsel often work on a freelance basis; however, employment as an employee is also possible. In self-employment, general employment protections, such as protection against dismissal under the KSchG, do not apply. Entitlement to vacation, continued payment in case of illness, or other contractual rights of employees do not apply to Of Counsel in freelance status. However, if a de facto employment relationship exists – for example, due to close right of instruction and integration into the firm’s organization – employment law claims may arise. The legal classification therefore always depends on the actual structure of the relationship.
Are Of Counsel subject to attorney-client confidentiality and professional regulations?
Yes, Of Counsel are always obliged to confidentiality pursuant to § 43a para. 2 BRAO, regardless of status. They are fully subject to the professional regulations for lawyers, and must, in particular, comply with the rules on avoiding conflicts of interest (§ 43a para. 4 BRAO) and the obligation for conscientious professional practice and continuing education (§ 43a BRAO, § 59e para. 2 BRAO). They are also subject to the relevant EU data protection directives and the duty of accountability to the Bar Association.
What contractual provisions are important in the relationship between Of Counsel and the firm?
Clear contractual agreements on the distribution of tasks, remuneration (fixed salary, revenue participation, reimbursement of expenses), allocation of liability, and the extent of use of office space and resources are essential. The contract should also regulate how client acquisition, use of the firm’s name by the Of Counsel, and authority of representation are organized. Provisions regarding liability insurance, data protection, and handling confidential information must also be included. It is recommended to clearly define participation rights in firm decisions, rights of instruction, and any non-compete clauses.
Are there special professional regulations regarding the designation “Of Counsel”?
The designation “Of Counsel” is not explicitly regulated under German professional law, but pursuant to § 6 para. 1 BORA must be used truthfully, objectively, and not misleadingly. The person must actually have an advisory role corresponding to the position in the firm and must not be used purely for prestige. It is also important to clearly distinguish it from other titles such as partner, associate, or freelance counsel. Incorrect or misleading information can trigger cease-and-desist claims under competition law (UWG) or professional measures.
Can Of Counsel also work part-time or for several firms at once?
In principle, Of Counsel may work part-time or for multiple firms as long as there are no professional or contractual restrictions. Maintaining ongoing professional independence is required, particularly with regard to potential conflicts of interest (§ 45 BRAO). The functionality of the firm and transparency with clients must also be maintained. Contractual exclusivity agreements between the Of Counsel and a firm can limit such multiple engagements; confidentiality must be ensured even if mandates are held in parallel.