By Sasha Kamfiroozie and James D. Crosby
Co-counseling is a delicate subject. Many attorneys avoid it, especially when the relationship is between two firms. However, a well-thought-out co-counsel relationship can benefit both attorneys. For example, a less-senior attorney can take on a more complex case and walk away with nice templates for their next case. The senior attorney then has the opportunity to act as a mentor and receive the financial benefits of another case. Meanwhile, solo attorneys can keep cases that might otherwise go to a bigger firm by pooling their experience and skill set.
These arrangements can be great opportunities for new and interesting work. The next time you face a complex matter, consider co-counseling with the help of these 10 tips:
1. Case/Matter Strategy and Approach
Different attorneys will have varying approaches to get desired results in a matter. At the outset, discuss and agree with your co-counsel on a case/matter strategy. Alternatively, accept that your approaches differ so much you shouldn’t work together and instead look for other co-counsel.
2. Clear Division of Work and Agreement Fees
Decide at the outset how work and fees will be divided. The less senior attorney with the prior client relationship may want to handle as much of the work as possible, while senior counsel provides support through document preparation and client communications.
You may need senior counsel to take the lead due to the volume of work the matter generates, or you may want to simply divide the work based on your respective skill set and workload.
However you decide to divide work, it is important to outline the following: Who will be the point of contact for client communications? Will both attorneys participate in calls and meetings? If both attorneys participate, how will the attorneys’ time be billed?
Will one firm handle all client billing or will each bill for their own time? Who is responsible for each phase of the case and relevant deadlines? Who will advance costs and how will they be reimbursed?
As to billing and fees, there can be a variety of case-specific arrangements. Where two attorneys are present but not required, one attorney no-charges their time (the cost of learning) or the attorneys each bill at half time. Sometimes it makes sense for both attorneys to bill at their full rate, such as when they are addressing complex issues or preparing case strategy, or in a substantial matter warranting multiple attorneys. In some cases, the attorneys will need to agree on how to divide a contingent fee.
If the co-counsel arrangement involves the splitting of legal fees (as opposed to each attorney simply billing the client directly), compliance with California Rule of Professional Conduct 1.5.1 is required. Rule 1.5.1 requires that the lawyers enter into a written agreement to divide the fee, that the client consents, and that the total fee charged by all lawyers is not increased solely by reason of the agreement to divide fees.
3. Put it in Writing
A common breakdown in co-counsel relationships occurs when the parties are not clear — both at the outset and throughout representation — of the expectations for each attorney.
Failing to properly document division of work, particularly if you don’t have one attorney overseeing the case every step of the way, can result in missed deadlines, dissatisfied clients and potential malpractice. If the ball is dropped, both lawyers will be on the hook. That is why I encourage the less senior attorney bringing the matter to co-counsel to be involved every step of the way, even if this results in a lot of non-billable time. The cost of learning is time well-spent. Moving forward, you will have the skill set to take on these matters independently.
4. Present and Obtain Client Approval
Co-counseling attorneys should consider a written document to memorialize their expectations and commitments in the case. It can be included in the Rule 1.5.1 agreement if the case involves the division of fees. Alternatively, it can be a separate written agreement between counsel or an email exchange between the attorneys memorializing what each attorney will be doing in the case or matter. Keep in mind, this may be an evolving document.
Explaining to your client why you want to bring in co-counsel is a sensitive subject. As the attorney with the client relationship, you don’t want the client to leave your firm.
Explain how co-counsel benefits their case. Explain that they will never be double-billed, so they essentially get two lawyers for the price of one. You know the facts of their case/business best, so there is value in having you manage the case. Co-counsel brings a unique skill set or experience that adds value to the matter. The client knows you are a solo attorney and co-counsel allows you to use the other firm’s support staff, etc.
Finally, make sure the client knows it is ultimately their choice and that if they prefer to have the matter handled entirely by another firm, you will support transfer to new counsel. The most important thing is that the client has confidence in whomever is handling their matter. Even if the client proceeds with a new firm entirely, you will maintain trust and confidence by having been transparent about where your experience lies. Ideally, that client will come back to you for work in your wheelhouse or will refer future work.
5. Who Speaks to the Client, Opposing Counsel and Press
Determine who speaks to the opposing counsel for the client. Two attorneys communicating directly with opposition will surely create confusion and strategic openings for opposition — “But your co-counsel said this!” Likewise, determine who communicates with the client. You must have clear lines of communication with the client to lessen client confusion or dissatisfaction. Finally, if it is a high-profile matter, determine who speaks to the press. Conflicting or competing statements to the press from co-counsel will likely hurt the client as well as the credibility of you and your co-counsel.
6. No Duplication of Effort and Billing
A co-counseling arrangement should not be an excuse for both attorneys to bill as if they were working alone. There needs to be a clear delineation of decision making, task completion and billing. Further, the more attorneys involved, the more opportunities there are for attorneys to communicate about the case. That communication must be deliberate, goal-driven and consistent with the division of authority.
7. Conduct Regular Meetings/Case Review
Lack of communication is the greatest risk to a successful co-counsel relationship. Be sure to schedule regular calls or meetings to review work to date and approaching deadlines, monitor and re-assess strategy as necessary, and coordinate the work moving forward. Regular calls, meetings and documentation will help avoid the “I thought you were doing that!” problem.
8. Coordination of Marketing, Social Media and Public Statements
Many attorneys use case victories and experiences as marketing opportunities through social media posts, press releases and speeches. These efforts also reflect on the co-counsel. You surely don’t want your long and well-earned reputation sullied by something your co-counsel says on a Facebook post about the case or your client. Coordinate your marketing efforts and social media activities concerning a co-counseled matter to ensure that both co-counsel benefit, and you avoid embarrassing public missteps.
9. Attorney Withdrawal Issue
In a co-counseling situation, your agreement with your client should address what happens when one attorney withdraws as well as the right of the remaining attorney to withdraw. You should consider including in your fee or Rule 1.5.1 agreement the right to withdraw when and if your co-counsel does. When the case was undertaken as a co-counsel matter, you should not be obligated to remain in the case if your co-counsel bails.
10. Don’t Steal the Client From Your Co-Counsel
Cardinal rule — don’t steal the client from your co-counsel! Let’s say Sasha brings a long-time client to Jim in a co-counsel setting. Perhaps the matter is too big for Sasha’s office or she needs Jim’s expertise. The client remains Sasha’s on other matters. Once the client gets somewhat under Jim’s roof, Jim may be tempted to make a run at the client for other work or, more bluntly, steal the client away from Sasha. Cynical, I know, and while this Jim wouldn’t do that, others might! It’s a competitive marketplace. Under these circumstances, it is wise to have a frank discussion with your co-counsel from the start that your client is off-limits.
Co-counseling arrangements help maintain and develop mutually beneficial professional relationships. It is important, however, that co-counseling attorneys enter these relationships with eyes wide open. A full understanding of respective roles and expectations, on the part of the attorneys and the client, is crucial for the success of the arrangement.
Be very selective in who you agree to work with. Work with someone who is fair, reasonable and ethical by your standards. Not all personalities work well together and there will surely be ongoing discussions and renegotiations of the division of work as the matter moves forward. Simply put, find a flexible and trustworthy co-counsel.