Sometimes co-counsel relationships are formed “on the fly” meaning that there will be no thorough discussion as to who will be responsible for what. This can be disastrous if each attorney assumes the other will meet a critical deadline and as a result a deadline is actually missed. Unfortunately, this situation can get even messier if one of the attorneys is uninsured and heaven forbid the uninsured attorney happens to be the out-of-state attorney who asked you to serve as local counsel. This is just one example of what I have come to call “the mistake of assumed competency.”

Here is another. Local counsel had worked with an out-of-state firm on a number of cases over the years and the work done by the out-of-state firm was consistently high quality. As a result, local counsel became less and less vigilant in staying on top of each case and eventually got to the point where he was just signing documents or making an appearance with out-of-state counsel whenever necessary. Eventually one of these matters did end up going to trial and when the judge entered the courtroom he unexpectedly informed the out-of-state attorney that her documents were not in order and as a result she was not going to be able to try the case. The judge then turned to local counsel and said “you’re up.” Due to his total dependence on the efforts of the out-of-state firm, local counsel was completely unprepared to try the case. The case was tried, however, and it was apparent to everyone in the courtroom, including the client, just what had happened. The local attorney reported that this experience was the most horrific experience of his career and yet he was able to acknowledge that by his assuming that everything was in order he helped create that nightmare.

Perhaps there was a time when, out of professional courtesy, we could assume that our professional colleagues were competent; but those days are long gone. Consider the fact that 45% of all malpractice claims during the period of 2008-2011 were the result of a substantive legal error.* The old adage of “there is no such thing as a free lunch” would seem to be an appropriate metaphor. Assumptions about the competency of any attorney you are about to co-counsel with can lead to serious malpractice consequences.

Fortunately, there are a few practice pointers that can significantly reduce your exposure to claims arising out of co-counsel relationships if taken to heart. They are as follows.

1. When considering entering into a co-counsel relationship with an attorney about whom little is known, investigate the attorney before committing to the relationship. You might ask for recommendations or references, conduct a background check, interview the attorney, and/or contact area judges or attorneys who practice in the same field in order to ask about prospective co-counsel’s competency and reliability.

2. Have a formal written co-counsel agreement that documents the roles and responsibilities of each attorney. The agreement should address issues such as:

• who will do what,
• how will disagreements be resolved,
• who gets paid what and when,
• who will hold client funds,
• who will bill the client,
• how will expenses be paid,
• who discusses expense decisions with the client,
• how will monies be split if the client only partially pays, etc.

How the negotiation over the co-counsel agreement proceeds may help to determine whether the two of you can work well together. Consider also documenting your roles and responsibilities with the client if for no other reason than to avoid having assumptions in play and such documentation should always be present if one of you is going to have a very limited role in the matter.

3. Commit to tracking all critical deadline dates on all co-counsel matters regardless of your level of involvement and follow up with your co-counsel to either confirm you will meet your specific deadline or to make certain that your co-counsel will meet hers. This is particularly important on those matters where your involvement is going to be limited to nothing more than your serving as a local contact who will eventually receive some type of referral fee. Also remember that as co-counsel you are jointly responsible and liable for the matter being handled. There really isn’t any halfway with this. If co-counsel misses a deadline, you’ve got a problem. This is why attorneys who decide to exit a co-counsel relationship exit completely to include forfeiting any referral fee. Again, liability comes with the money.

4. Finally, make certain that your prospective co-counsel is adequately insured and do not accept his or hers verbal assurances. I have had attorneys tell me that they will say they are insured to get work when in fact they are practicing without any coverage. Financial pressures in competitive markets can result in certain attorneys being forced to take financial risks. This means you do need to get written proof that the co-counsel is adequately covered. A simple swap of a copy of everyone’s declaration page to their malpractice policy would suffice. If you find it hard to have this conversation, place the responsibility on your malpractice carrier. A request framed as “my malpractice carrier requires verification of your coverage” can work wonders.

Have you worked with or as co-counsel?  What was your experience?

*Profile of Legal Malpractice Claims 2008-2011, ABA Standing Committee on Lawyer’s Professional Liability 2012