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When You Can’t Go It Alone: Finding and Working with the Right Co-Counsel

February 25, 2021

As the U2 song goes: “Sometimes you can’t make it on your own.” Alas, such is the case for litigators.

Like anyone entering an important relationship, solo and small-firm lawyers seeking co-counsel need to find someone who is compatible, shares similar professional interests and will work collaboratively to achieve common goals. The first step in that process is deciding what role that co-counsel will play in your case. You may be seeking to appear in a jurisdiction in which you’re not admitted. You may need someone to handle a local court appearance – perhaps a pretrial hearing – that you’re unable to attend in person. Or you might seek someone to assist with a matter in a practice area in which you don’t have sufficient experience. While most co-counsel relationships aren’t long-term commitments, your co-counsel will reflect – either positively or negatively – on your practice. So, it’s critical to find the right match and build a solid working relationship that benefits your clients.

Locally Based Co-Counsel

An attorney who is not admitted to practice before a particular court might seek permission to appear pro hac vice, or “for this occasion only.” Court rules may require lawyers to retain local counsel before they can appear, so you will want to find someone with firsthand experience with the court and its judges. You can always consult your own professional network or search the internet, but for a more direct approach, call the court clerk and informally ask for the names of lawyers who regularly appear in that courthouse and are well-regarded by judges. For a criminal defense matter, the clerk can provide the list of lawyers who accept court-appointed cases. Court-appointed attorneys often know the inner workings of a courthouse better than anyone, and such lawyers often can share useful advice about the tendencies of judges and the court’s idiosyncratic procedures. Another resource in some localities is the public defender’s office, which also can recommend co-counsel.

Remote In-Person Counsel

Perhaps you need a lawyer to participate in a pretrial matter in an out-of-town court, either because you’re unavailable or it isn’t worth the cost or time away from the office to attend. Again, this is where a call to the clerk requesting names of local lawyers who regularly appear before the court can be helpful. The key to hiring and working with local counsel in this situation is to clearly outline for the client and the court the scope of the local counsel’s representation, making it clear to everyone that counsel is only making a “special appearance” with no further obligations to the court or client beyond that one appearance. For example, local counsel might make a special appearance for an arraignment or bond hearing in a criminal matter, or for a scheduling conference in a civil case, with the understanding that out-of-town counsel (you) will appear for the trial.

Counsel with Practice-Area Expertise

You may find yourself handling a case that requires expertise outside your comfort zone. Perhaps you have a personal injury case that requires a special-needs trust for a client who is incapacitated. Or maybe you are a divorce lawyer seeking help with a tax issue or with the division of military retirement – both notoriously tricky areas that can trip up even the most diligent attorneys. In addition to tapping your own extended networks, including LinkedIn, good sources of specialized expertise might be found through professional organizations with selective admissions standards, such as the American Academy of Matrimonial Lawyers, the American College of Tax Counsel and the American College of Trust and Estate Counsel. Such groups have online referral services that can put you in touch with qualified lawyers in your area. While it’s always good to gain experience from working your first solo case on any given issue, it is sometimes wise to engage with experienced counsel rather than risk inadequate representation.

Working with Co-Counsel

Once you’ve identified your co-counsel candidate, you might draft a formal agreement that documents each lawyer’s responsibilities and addresses how disagreements will be resolved, how each lawyer will be compensated, how expenses are covered and so on. The negotiation over the co‐counsel agreement might help determine whether the two of you can work well together. Lawyers should also agree on financial arrangements and clearly communicate them to the client, possibly having the client sign a professional fee agreement directly with co-counsel. Depending on the state, legal ethics rules may require specific advanced disclosures. In Virginia, for example, the division of a fee between co-counsel who aren’t in the same firm may be made only if: (1) the client is advised of and consents to the participation of all the lawyers involved; (2) the terms of the division of the fee are disclosed to the client and the client consents to those terms; (3) the total fee is reasonable and (4) the division of fees and the client’s consent is obtained in advance of the rendering of legal services, preferably in writing.

Regardless of your and your co-counsel’s respective levels of involvement in a case, it’s important to track all critical deadlines on all matters and make sure that they are met. Also, before engaging co-counsel, take steps to make sure that counsel is in good standing with the state bar. When going it alone isn’t an option, matching up with the right co-counsel and clearly defining the terms of the relationship are the keys to success.