July 13, 2024


The Legal System

What’s the difference? – Biglaw Investor

What’s the difference? – Biglaw Investor

Key Terms

  • There are many kinds of law firm attorneys with titles that include the word “counsel.”
  • Counsels are salaried employees, usually thought to be between associates and partners.
  • Although each counsel position is very flexibly designed, the ABA has described four kinds of counsels that are commonly found in law firms.

Law firms tend to operate under a partnership structure. At the top, partners who have an ownership interest in the firm’s business will run the show and make all the decisions. At the bottom, associates work for partners as employees of the firm and are paid a salary to practice. While the vast majority of law firm attorneys are either partners or associates, other positions do exist, including various positions that include the title “counsel.”

While the counsel position used to be reserved for very senior attorneys no longer in the partnership or for those who share a unique relationship with the firm (e.g., politicians or special advisors), the title is now used in a handful of different ways. In this article, we will explore some of the ways that law firms utilize counsel attorneys and what such a position might entail in contrast to being a partner.

What it’s like to be counsel

The definition of counsel is more about what it is not. Any attorney at a law firm (and sometimes non-attorney) that is not a partner, associate, or staff/contract attorney is likely to be called counsel. Graduating from law school opens the doors to the legal profession, and there are plenty of options out there from solo practice, in-house counsel, Biglaw, and even the nonprofit world to consider.

Counsel positions, however, are often popular among new law school grads. General counsel means not having to seek out the billable hours and book of business required of someone going solo. Smaller firms and large law firms ask a lot of associate attorneys, especially when it comes to growing the business and logging billable hours. Being your own legal department, however, can have big benefits for your legal career.

If you don’t want the stress of business development that comes with a new firm, and you don’t want to enter a biglaw firm, either, an of counsel position might be the middle ground you’re seeking. Whether you’ve been full time for a while or this is your first year practicing law, it’s hard to get enough business to meet the needs of a small law firm or to clock enough billable hours at another firm. Your job search may pivot to looking at counsel positions as a result.

A few things are certain about counsel positions. First, counsels do not share in the firm’s profits; they are salaried just like associates. How much a counsel gets paid will depend on the individual and the firm, but it will usually be closer to what mid/senior associates make than partners’ compensation. Second, being counsel is less prestigious than making partner or being a managing partner.

This may not matter to some people, but in terms of law firm branding power as a lawyer to clients and the outside world, a partner will be more impressive. Third, counsels must maintain a “close, regular, personal relationship” with the firm or else it is unethical to be one as determined by the ABA. And counsel work still requires being a hard-working lawyer and often logging many hours, even if you’re not the one finding clients in business origination. There’s a lot of work to around for someone of counsel.

Much of a counsel position’s actual characteristics will be hidden from the public eye. Some counsels will work reduced hours in a specialized or technical practice such as tax, benefits, or white-collar investigations, while other counsels will be similar to salaried partners. You may remain active in your bar association and continue to network with other paralegals, lawyers, and former partners, but to a lesser extent than most lawyers in small or large law firms.

Counsels are permitted to work across multiple law firms, but such a scenario is rather rare and speaks to the flexibility of the position. The flexibility is afforded to the law firms in how they design each counsel position rather than the position itself being flexible for the attorney.

Living in a city that has multiple counsel positions may be helpful to your job search. For example, places like New York, Washington, D.C., and Los Angeles are home to more companies and may present multiple options to work as counsel.

Various kinds of counsels in law firms

The ABA provides a few acceptable definitions of the term “counsel” (also commonly called “of counsel”). We will explore each in order.

  1. A part-time practitioner, frequently one who is transitioning from a different career path (e.g., former judge, government, or in-house).
  2. A retired partner of the firm who remains associated with the firm without actively practicing.
  3. A probationary partner-to-be—often as a result of lateraling.
  4. A lawyer in between associate and partner but without the expectation of making partner in the future.

The part-time practitioner counsel is not very common. Rather than providing value through the actual practice of law, a mutually beneficial relationship between the firm and an individual can be made official and sustained through the title of counsel. This individual may practice some, but the expected contribution is through specialized knowledge, pedigree, strength of network, or the holding of public office (this one may depend on the state).

The retired or very-senior partner can also be counsel. These counsels are often called “senior counsel,” and involve some partner who has been with the firm for a long time that is either retired but involved for limited matters or has stepped down from the partnership without leaving the firm.

Being a law firm partner can be a rather demanding occupation, and those who have proven their worth to the firm over the years can continue to maintain a close and mutually beneficial relationship while retired or working less. Of course, counsels are not permitted to share in the firm’s profits, so a partner-gone-counsel should expect to earn less and have less decision making than they previously did.

Partner-eligible laterals who are expected to become partners can be parked in the counsel role for a limited time. Some firms will have a probationary period of a year to two years before someone is made non-equity partner.

This policy and process may vary from firm to firm, but an attorney may be counsel just for that probationary period with the full expectation that they will be up for partnership officially in due time. These probationary counsels are usually either laterals (either senior associates or junior partners from other law firms) or those who have spent time away from the firm to have lost an eligibility requirement for being made partner.

Finally, counsel can be attorneys who are permanently not on a partnership track but continue to contribute to the firm with their practice. We can call these counsels “tenured counsels.” Some tenured counsels are not partner-material for various reasons but are still excellent practicing attorneys. Other tenured counsels practice in such a niche practice area that the firm does not want profit-sharing partners for it.

Even if the practice is not super niche, there may not be enough work in a practice to be able to use partners. Counsels will often, but not always, work less than partners and associates, so if matter volume is a problem, a tenured counsel may be the right choice for a firm. Finally, even if an attorney is capable of making partner in a robust practice group, becoming a tenured counsel might be possible because of personal preference.

Avoiding certain partner responsibilities while escaping the up-or-out pressures of being an associate may be desirable to some even if it means coming at the cost of prestige and increased compensation. Tenured counsels may be treated, to some effect, like permanent non-equity partners.

What’s the difference? – Biglaw Investor

Joseph Kim is a 2L at Notre Dame Law School. Joseph grew up in California where he developed an interest in working with music, powerlifting, and bowling. He’s been a member of the FIRE community since before law school and plans to pursue FatFIRE following graduation.