To Co-Counsel or Not to Co-Counsel ... What's the Question?

Deciding whether to engage co-counsel really is not a question in some cases.

For example, if you are admitted to practice in one state and you need to file in another, there's no question. You have to associate with local counsel.

But if you have the option to bring in an attorney on a case in your own jurisdiction, then that is a question. Here are some answers:

Choose Wisely

You gotta love the observation of the Grail Knight from Indiana Jones and the Last Crusade, when the greedy Walter Donovan drinks from the wrong cup. After the man shrivels up into a dusty skeleton, the knight says in epic understatement: "He chose poorly."

When looking for co-counsel, don't choose that guy. The case is hard enough, the last thing you need is someone who wants to take the rewards without doing the work.

It's one of those times when "who you know" really matters. You don't want to work with somebody you don't really know. Even if they have a good reputation, sit down and discuss the case in person before deciding to give them a piece of it.

Put It in Writing

How often do lawyers engage in business without the formalities of a contract? It's probably as often as the plumber who never gets around to fixing the leaky faucet at home. But it has to be done, otherwise it can turn into a big mess.

Mark Bassingthwaighte, writing for Solo Practice University, talks about the "mistake of assumed competency." In one form, it happens when an attorney enters a co-counsel relationship with the assumption that the other lawyer is insured.

"(M)ake certain that your prospective co-counsel is adequately insured and do not accept his or hers [sic] verbal assurances," he said. "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."

The same documentation is needed for the co-counsel agreement. If you are the lawyer who has the client, make sure it stays that way by putting it in the agreement. This will help you maintain control throughout the relationship, including decisions on who does what work, recovery, termination, etc.

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