Contract Attorney vs. Of Counsel: Key Differences
How contract attorney arrangements and of counsel relationships differ in duration, supervision, conflicts, billing, and how they may be described.
This article is general information for lawyers. It is not legal or ethics advice. Professional conduct rules differ by jurisdiction, so check your own state's rules and ethics opinions before acting.
"Contract attorney" and "of counsel" are both common ways to work with a firm without being a partner or associate. They describe very different relationships, and the difference affects conflicts, supervision, and how you can be presented to clients.
Contract attorney
A contract attorney is engaged for a specific project or period, such as drafting a set of agreements, handling research, or reviewing documents. ABA Formal Opinion 88-356 addresses temporary lawyers, and ABA Formal Opinion 08-451 addresses lawyers who outsource legal work. Together they emphasize that the hiring lawyer stays responsible for supervision, confidentiality, competence, and a reasonable fee, and may need the client's informed consent in some situations.
Of counsel
ABA Formal Opinion 90-357 describes "of counsel" as a close, regular, and personal relationship with a firm that is not a partnership or employment as an associate. It suits lawyers who work with a firm on an ongoing basis. Because the relationship is close, conflicts are generally treated as shared with the firm, and the title must accurately reflect the relationship (Model Rule 7.1).
Side-by-side
| Factor | Contract attorney | Of counsel |
|---|---|---|
| Relationship | Project or time-limited | Close, regular, continuing |
| Supervision | Usually supervised by the hiring lawyer | Often works more independently with the firm |
| Conflicts | Checked per engagement; screening may be possible depending on access | Generally imputed to and from the firm |
| Billing | Hourly or fixed fee to the hiring lawyer or firm | Varies by agreement |
| How it is described | Should not be presented as a firm member | May be listed as "of counsel" only if the relationship is genuine |
Which is right for you?
If you want flexibility and defined projects, contract work is usually the better fit. If you want a lasting connection with one firm and can accept shared conflicts, of counsel may suit you. Either way, document the arrangement in writing.
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