A co-counseling arrangement can allow a solo or small firm lawyer to explore new and complex areas of law. Co-counseling agreements may also allow a lawyer to take on matters that he or she might not otherwise feel comfortable taking on. The co-counseling arrangement does all of this, while significantly reducing the danger of committing malpractice. Consider the following situations:
- You are an experienced civil litigator and would like to branch out into criminal defense work. A potential client who has been charged with a serious felony approaches you and you don’t feel comfortable taking this on alone as your first criminal case.
- You are an experienced criminal defense lawyer, but have never taken on a divorce matter. A potential client approaches you with a new matter involving complex issues concerning the children and division of assets. There are child abuse allegations on both sides, and the husband owns his own business that is worth several million dollars.
- You are an experienced civil litigator, who is approached with a multimillion dollar medical malpractice case. Although you have litigated many personal injury cases, you have never even seen a medical malpractice case, and you have no medical background.
In the above scenarios, would you be inclined to take on these cases? Would you have reservations about your ability to effectively represent your client? If your answer to both of these questions is yes, you may want to consider a co-counseling arrangement with another lawyer who has experience in the areas of concern. In fact, you may be required to do so – see Goff v. People, 35 P.3d 487 (Colo. O.P.D.J. 2000).
The two important written documents for the co-counseling arrangements are your fee agreement, which must authorize a co-counseling arrangement, and a co-counseling agreement with your co-counsel.
The fee agreement with the client should include not only your client’s authorization to hire co-counsel but also an authorization concerning the critical terms of the co-counseling agreement, including, perhaps most importantly, the fees for each of the lawyers.
The co-counseling agreement should be specific as to each lawyer’s role in the matter. Specifically, the co-counseling agreement should identify which lawyer is the lead counsel (especially in the event of litigation); the fee arrangement for each lawyer; who is responsible for collecting fees; and the procedure for lawyers consulting with each other. It is important to note that before entering into any co-counseling arrangement, both lawyers should have malpractice insurance in effect. The representation of the same party should be reflected in the written co-counseling agreement.
In any type of litigation, the co-counseling agreement should identify whether each lawyer should review the pleadings for final approval before they are filed.
A co-counseling agreement can add variety to your practice, increase your number of colleagues, and allow you to see whether you might want to delve more into a new practice area.