As with any attorney, an of counsel must undertake a conflict analysis in connection with any new engagement. When analyzing a potential conflict, of counsel attorneys should apply the same standards as would be applied in more traditional relationships existing between associates and partners with other attorneys in their law firms. See Georgia Formal Advisory Opinion 98-4; People ex rel. Dep’t of Corporations v. SpeeDee Oil Change Sys., Inc., 20 Cal. 4th 1135, 1154, 980 P.2d 371, 384 (1999)(“The close, personal, continuous, and regular relationship between a law firm and the attorneys affiliated with it as of counsel contains many of the same elements that justify the rule of vicarious disqualification applied to partners, associates, and members.”).
Because “of counsel” attorneys must have a close, regular, personal, relationship with the principal firm, when an “of counsel” attorney would be required to decline or withdraw from multiple representations, then no partner, associate, or other “of counsel” attorney of the principal firm may accept or continue such employment. See Georgia FAO 98-4; Haggerty v. Red Bank Borough Zoning Bd. of Adjustment, 385 N.J. Super. 501, 516, 897 A.2d 1094, 1103 (N.J. Super. Ct. App. Div. 2006)(“A person in an “of counsel” relationship with a law firm [that] has a sufficient stake in the financial viability of the firm as to impute to such individual any disqualification of the firm arising from client representation by partners or associates in the firm.”). The converse is also true.
For more information, check out my book – A Lawyer’s Handbook on Contract Lawyering in Georgia.