Can someone explain the “of counsel” position? It it really people who just couldn’t make partner?

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Not even an Of Counsel can explain what an Of Counsel is/was/can be.

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At least to my knowledge, it means someone who is technically very proficient and who the firm wishes to keep around but lacks the commercial skills/book of business to be a partner.

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It’s basically anyone that does not fit the associate or partner categories, for whatever reason. Some senior associates decline partnership, but bring in enough business to be self sufficient and are too experienced to be called an associate anymore, so they are promoted to counsel. For some, it’s certainly because they couldn’t cut it, but by no means is that the general rule in my experience.

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It’s also for former partners winding down their practice. The only constant in Of Counsel positions is seniority of the individual, i.e., they tend to be older and more experienced such that associate is not an appropriate title.

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Agree with A3 and AL1 above. Also my firm has started to “promote” associates to of counsel 1 year before they make partner. I think I make more as an associate so that’s a no from me dawg

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So it’s like my 1L elements class....

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I wish I knew 😭

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The of counsels at my firm do pretty well I think. Comp is basically 40% of “fees actually paid” for the year... with bonus/true up done quarterly. Pretty sweet partnership alternative if the of counsel has a rainmaker partner feeding them good work

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I think it’s a catch all—it can mean like 6 different things at our firm.

Not necessarily. Moms with kids in our office elect to become Of Counsel; some leaving the partnership to do so. It is easier for them to raise children without being saddled with management duties

I think the mom thing is a red herring. Many of my female friends (including partners) have husbands/spouses who are the primary parent. I legit get mad at day care if they call me first. And the idea that I would be perceived as less available or committed to my job as another colleague is irritating because it means to some extent that the arrangement I and my husband have mastered isn’t resulting in my appearing to be 100% committed. That said, the of counsel thing sounds nice for work life balance which isn’t and shouldn’t be just a parent thing. AND ANOTHER THING... I do think parents, by necessity, do end up setting firmer or more conservative boundaries. But non parents can do that too. I have had childless colleagues leave at 4:30 3 days a week during the summer to crew/sail, others who do nonprofit work in the evening, during the day, etc. Ultimately it’s a question of priorities, boundaries, and respect. And of course people may comment on your boundaries/commitment but they’ll comment about anything ultimately. I’m a mercenary, I really only care what my paycheck/bonus says.

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Valuable associates who don’t have commercial skills.

We have a few who are exactly that. Workhorses who hate travel/business development.

At my firm Of Counsel is for attorneys on track for Partner but the managing partners think they're just not ready yet - but too good to be an associate.

I agree with AL 1 and A3 as well, adding that often at larger firms, you may see someone promoted to Of Counsel if they work in a specialty such as Antitrust, Tax, or Labor & Employment. While these practice groups are certainly capable of generating independent work, rarely are the attorneys in these fields driving or originating large scale commercial transactions, they're primarily just relied upon as counsel for that particular issue within the context of the transaction.

I was a partner and requested to be of counsel for a few years because it was a better fit for me financially at the time. No billable requirement. Compensated by a clear formula that rewarded me for work done for others as well as work I originated. And allowed me the ability to have a solo practice on the side handling cases outside of what I had been practicing for years. The biggest advantage? It allowed me to have a business that operated as a loss with schedule C expenses (i.e. an above the line tax deduction). This caused my income to essentially become tax free. And, it reduced my spouse’s taxable income on our joint return. I went back to the partner title and role a few years later for various reasons. I will say that while I have to pay a LOT more taxes now, clients care about the title. With a partner title, they trust that you have a more stable relationship with your firm, and my book of business with existing clients has increased. I also think that my firm is a bit of a unicorn though in that they try extremely hard to be fair and also accommodating to what employees want/need. I know another of counsel with my firm that was offered partnership and turned it down. With that individual, she also understood and appreciated the tax benefits and flexibility that an of counsel position can provide. You definitely should not look down at the of counsel job title because it addresses a variety of situations.

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