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Traditionally, those at The Firm known as “Of Counsel” were older lawyers seeking to curtail their workloads and escape the pressures of partnership. Designating a former partner as “Of Counsel” has also been a convenient way for The Firm to avoid the unpleasantness (and inevitable lawsuit) resulting from ousting senior lawyers whose legal skills are in decline. Another advantage of the traditional Of Counsel category is that it allows lawyers to avoid full retirement. In other words, it gives them a place to go. This provides critical relief to lawyers’ spouses who, over the previous several decades, grew accustomed to having their life companion at The Firm and out of the house virtually every waking hour. The Of Counsel concept has in recent years been expanded to include other kinds of attorneys The Firm doesn’t know what to do with. Nowadays, one doesn’t have to be an elderly walking malpractice case to be Of Counsel. Instead, an Of Counsel can now fall into one of the following categories: 1. The Qualified Associate Who Will Never be Elected Partner Every firm has at least one associate who is an exceptional lawyer but, let’s face it, just isn’t one of the boys. You know the type — the first one you turn to if you have a client with a complex legal problem but the last one you call to go to lunch or if there’s an extra ticket to the ball game. This associate is destined never to be elected to partnership. Just before the critical vote is taken, a senior partner asks: “Do we really want this person sharing in our profits and hanging around our annual retreat?” While refusing to promote the associate to their ranks, the partners nevertheless want to encourage him or her to stay at The Firm. They therefore offer the associate an Of Counsel position and convince him or her that it’s really a big promotion. Even the guys in the mailroom know it’s The Firm’s scarlet letter. After a spending a couple of years as an Of Counsel, the attorney finally catches on and decides to move to another firm where he or she is offered a partnership position. Without even trying, clients who don’t care if the lawyer is or isn’t one of the boys, send all their business to the lawyer’s new firm. The old firm unsuccessfully begs the former Of Counsel to come back and offers a partnership position. 2. The Former Partner After making partner by jumping through all the hoops on the partnership track at one firm, some lawyers decide to move to a new firm. Because every firm has its own set of hoops, the new firm might require the lawyer to spend a number of years as an Of Counsel before being accepted as a partner. To the former partner, this process is a humiliating step down. To partners at The Firm, it’s a great deal because they gain the services of a fully qualified partner at the price of an associate. Partners also enjoy having another obsequious lawyer around The Firm, that is, assuming the Of Counsel is successful in reverting back to acting like an associate. Not too long into the term as an Of Counsel, the lawyer comes to the conclusion the new firm is worse than the one he or she recently left. Eventually, the lawyer crawls back to the old firm begging for forgiveness. The former partner is usually taken back but, as punishment for defecting, he or she is demoted to the rank of associate. 3. The Former Politician Who Happens to Have Gone to Law School This Of Counsel type is a former governor or senator looking to cash in on his or her celebrity. Despite never having practiced law and being forced to leave elective office under the cloud of a public scandal, The Firm showcases this Of Counsel to clients, recruits and in its promotional material. The Firm pays the politician-turned-Of Counsel a high salary to do even less than he or she did while holding public office. The role of this Of Counsel is limited to playing golf with prospective clients and making a few phone calls when one of the partners or an important client gets arrested for drunk driving or an embarrassing vice activity. While having one of these Of Counsels around can be quite lucrative to The Firm, other lawyers must constantly be available to offer protection. New clients lured into The Firm by this Of Counsel might, unreasonably, expect him or her to know the answers to their legal questions. The former politician must always be flanked by bright and qualified practicing lawyers who can field questions posed by clients. This allows the Of Counsel to tune out of meetings with clients and think about plans for a political comeback. After a year or two at The Firm, this Of Counsel leaves to run for president but fails to win a single primary. In the long run, Of Counsel status does offer a number of advantages. Speaking of the long run, John Maynard Keynes said “In the long run we are all dead.” Of course, Keynes never worked at The Firm and didn’t know that “Old lawyers never die, they just become Of Counsel.” The Rodent is a syndicated columnist and author of “Explaining the Inexplicable: The Rodent’s Guide to Lawyers.” His e-mail address is [email protected].

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