The days of one firm—let alone one lawyer—handling all of a client’s complex cases or transactions are fading fast. A complex federal civil trial today can often involve lead national counsel, local counsel, specialty counsel interfacing with experts, settlement counsel, and appellate counsel. As in many other fields of endeavor, blending the special talents of different firms can produce a cohesive team able to address the increasingly intricate facets of a trial or transaction. At the same time, co-counsel relationships can present their own ethical and risk management challenges for the lawyers and firms involved.
In this article, we’ll look at three of these challenges: (i) conflicts; (ii) defining the scope of individual firm responsibilities; and (iii) billing and fee-sharing.1 Before we do, three caveats are in order:
1. First, although the three areas addressed frequently present issues for co-counsel, they are neither an exclusive list, nor do they inevitably arise in every co-counsel relationship.2
2. Second, co-counsel issues can be magnified if the law firms involved are also representing multiple clients in the same matter. Although our focus in this article is on co-counsel relationships, lawyers in those arrangements should be equally attentive to conflict and confidentiality issues that can arise when representing more than one client in the same matter.
3. Finally, lawyers within law firms have many different contractual affiliations today, ranging from equity partners to contract lawyers. ABA Model Rule 1.0(c) defines the term “firm” broadly to sweep a wide variety of individual relationships under the umbrella of the employing law firm. These varying relationships within a single firm can create their own ethical and risk management issues.4 This article, however, will focus on multiple firms (regardless of how they are staffed) that are representing a client as co-counsel.