Ethical Considerations When Working with Other Counsel
The old adage “two is better than one” certainly rings true in today’s legal world. A complex civil matter can involve national counsel, local counsel, trial counsel, and appellate counsel. Co-counseling combines the expertise and experience of multiple lawyers, which can provide benefits to the client and to counsel, including compliance with Rule 1.1 of the California Rules of Professional Conduct regarding competence. However, lawyers will do well to keep the following in mind before they agree to a co-counseling arrangement.
Prior to representing any client, an attorney should conduct a comprehensive conflict check. Federal courts in California have disqualified law firms based upon a conflict of interest imputed from one lawyer to the other. (See Beltran v. Avon Prod., Inc. (C.D. Cal. 2012) 867 F. Supp. 2d 1068, 1084.) As always, an attorney should conduct a comprehensive conflict check at the outset of the contemplated representation to avoid potential disqualification down the line.
Additionally, an attorney should be familiar with the claims and determine whether probable cause exists to support the claims or defenses. In Cole v. Patricia A. Meyer & Associates, APC (2012) 206 Cal.App.4th 1095, the California Court of Appeals concluded that a defendant attorney, who did not sign any pleadings and limited his role to trial counsel, cannot avoid liability for malicious prosecution, even if he relied in good faith on his co-counsel’s investigation of the claims. The appellate court reasoned that lawyers have an independent duty of care to their clients that encompasses “both a knowledge of the law and an obligation of diligent research and informed judgment.”
Further, an attorney should clearly define the scope of the representation and the relationship between the attorney, the client, and the originating attorney. Among other things, all attorneys involved in a given representation should clearly define how they will divide their responsibilities in the matter, how costs will be handled, and how fees will be split.[1] Memorializing these issues at the outset establishes clear expectations and helps avoid awkward confrontations later.
Any fee arrangement must comply with Rule 1.5.1 of the California Rules of Professional Conduct. The fee sharing arrangement must be written, disclosed to the client, consented to by the client, and the total fee charged by all lawyers cannot be increased by the fee-splitting arrangement.
Terms that must be disclosed and consented to by the client include the following: (i) the fact that a division of fees will be made; (ii) the identity of the lawyers or law firms that are parties to the division; and (iii) the terms of the division. Failure to obtain the client’s informed, written consent could result in the fee sharing agreement being deemed unenforceable as against public policy. (See Reeve v. Meleyco (2020) 46 Cal.App.5th 1092, 1098.)
The client’s oral consent or lack of objections will not suffice. Also, if an attorney does not carry professional liability insurance, he or she must disclose this to the client, even if co-counsel carries professional liability insurance; otherwise, the fee sharing agreement could be deemed unenforceable. (Rules of Prof. Conduct Rule 1.4.2; see Hance v. Super Store Industries (2020) 44 Cal.App.5th 676, 689.)
All attorneys should remember that ethical obligations are not delegable. This means an attorney must comply with the Rules of Professional Conduct at all times, including when representing a common client with co-counsel.
[1] Though not within the scope of this article, it is important to note that the California Rules of Professional Conduct prohibit fee sharing agreements between a licensed attorney and a non-attorney.