The COVID-19 pandemic experience of shuttered courthouses, restricted travel, and work-from-home arrangements has forced law firms to reevaluate how they do business, particularly when that work is done across state lines.
Whether your firm decides to work through local counsel from outside your firm or to act as local counsel for an unrelated, out-of-state firm, be sure to keep the following in mind.
Research and background check local counsel
While there is no such thing as knowing too much about an attorney or law firm with whom you are considering a co-counsel relationship, it is vitally important that they be properly vetted before agreeing to the arrangement. And when the information you get is not satisfactory, as can happen, politely and professionally decline the opportunity. Of course, do not be surprised when the same questions are asked of you and your firm.
Understand the insurance implications
Most prudent lawyers and law firms have robust errors and omissions insurance coverage. However, coverage should not be taken for granted. Further, many policies require that carriers be notified of any arrangements with co-counsel and failure to do so can negate coverage. If you are uncertain about coverage, ask your carrier and confirm it in writing. Do the same with your new co-counsel.
A good co-counsel arrangement heavily depends on a clear understanding of the responsibilities of each firm with respect to the case. Use the same advice you would give a client about a new business relationship and have the hard discussions before getting started. Then, put them in writing and adhere to them unless everyone agrees, in writing, to change them.
Document the relationship
Remember the adage about the attorney representing himself? Do not become a punchline to an old joke. Once you have decided to represent a client in a co-counsel arrangement, put the basic terms into writing and have everyone sign it, including the client. The writing should document the roles and responsibilities of each attorney or firm and clearly inform the client about who has agreed to do what and how they will be compensated.
Maintain privileges and confidentiality
Every co-counseled matter involves sharing documents, data, and information, most often in digital format, and every time they are shared, the risk of accidental disclosure increases. Using appropriate security standards from the outset can help protect client confidences and privileges and avoid unintended disclosures.
Agree on communications standards
No two firms operate the same and law firms operate differently than corporations and other businesses, but the key to any successful business relationship is good communication. Be sure to share information with co-counsel about how your firm works and then agree, preferably in advance, on how you will communicate with one another, the client, opposing counsel, and even the court.
Use a shared calendar
Every litigator knows the importance of a reliable, redundant calendaring system, and litigation calendars are extremely important when working with co-counsel. One missed deadline or blown due date can wreck a co-counsel relationship and irrevocably damage a client’s case. Luckily, most docketing software simplifies the process of calendaring. Just be sure to agree on calendaring protocols at the outset.
Use technology effectively
The pandemic has taught us the ease with which technology can be used to augment our daily routines or even replace some of the aspects of practice that can be annoying. However, technology cannot replace the value of a keen legal mind, and attorneys should resist the urge to lean too heavily on technology as a replacement for good, sound legal practices.
Cooperate as diligently as possible
All counsel should diligently keep the client informed of important developments, including difficult or even “bad” news, and include them in discussions of litigation or negotiation strategy and budgetary concerns. Prepare them for what is to come and do so with the assistance of your co-counsel. No one enjoys giving (or receiving) bad news, but it is dangerous and unrealistic to assume that co-counsel will convey that bad news or answer budgeting concerns if you will not.
Be judicious with travel plans
Avoid mistakenly thinking that lead counsel must attend every motion hearing or conduct every party deposition. Oftentimes, successful depositions, meetings, and court appearances do not depend on lead counsel being there in person. Remember that the reason for the remote counsel relationship is to avoid the costliness of interstate travel and accommodations.
Bill clearly, consistently, and efficiently
Clients always have questions about attorney billing practices, and the potential for confusion regarding fees and expenses increases whenever additional attorneys and firms are added to a matter. Be sure to moderate client expectations, incorporate budgets into all legal matters, and help clients understand why legal representation costs so much.
The best way to avoid hard questions is to head them off. Explain that the attorneys and firms are working together to allocate responsibilities to avoid “double billing” and perceived overbilling and to be efficient with their time and the client’s money. Welcome questions but try to make certain that the client understands beforehand how they will be billed, for what, and by whom.
Adhere to strict ethical standards
Regardless of how an attorney-client relationship is established, the law expects individual attorneys to understand their ethical obligations, to act accordingly, and to consult appropriate authorities when faced with a novel situation. This is especially true in an out-of-state or co-counsel arrangement, and all counsel must be sensitive to their duties and responsibilities under all applicable rules of ethics and conduct.
Plan for the unexpected
By definition, no one expects the unexpected. But, as attorneys, we know that the unexpected will happen. The same holds true when attorneys are working across state lines when the risk of the unknown is substantially increased. Build contingency plans into your relationship and plan for handling the unexpected when it inevitably arrives.
It is important to remember that just as no two cases are completely alike, no two law firms (or even attorneys) approach a case in the same way. But those differences, when acknowledged early on and approached in a meaningful way, can be used to make a case even stronger.
David Baker is a licensed attorney in Texas and California. He has been practicing law for more than 30 years and has an active litigation practice based in Orange County, California, that focuses on the protection of IP assets for business clients, in and out of court, throughout the U.S.