§ 8:8 “Of Counsel” Attorneys
Whether a firm may be held liable for the negligence of an “of counsel” attorney first requires a definition of what an “of counsel” attorney is. Arizona law firms may list a lawyer who is not a member of the firm as “of counsel” if:
(a) there is an ongoing and regular relationship where both sides are available to each other and each other’s clients for consultation;[351]
(b) both sides honor the confidentiality and conflict of interest requirements as if they were in the same firm;[352]
(c) “of counsel” lawyers who are not admitted in Arizona clearly disclose this;[353] and
(d) any other material limits on the “of counsel” lawyer’s relationship with the firm are disclosed.[354]
Arizona does not have published decisions addressing this issue directly. Other states have relied on either agency theory or apparent authority or both to resolve this issue.
In Hart v. Commerce Bank,[355] the Federal District Court for the Eastern District of Michigan relied on agency theory in order to determine whether a law firm could be...
