Developing and Maintaining Co-Counsel Relationships

Partnering with skilled co-counsel can offer significant advantages in complex litigation, including adding subject matter specialization, sharing expenses, dividing the workload, and broadening the team’s strategic perspectives. Indeed, strong co-counsel can have an immediate impact on the case—even at an early stage before a pleading is filed. At Tadler Law, we routinely work with and complement co-counsel, and they often make us better litigators. Co-counsel can even be a prime source for future clients or cases. But as many lawyers are keenly aware, co-counsel relationships come with their fair share of pitfalls. Difficult personalities can result in conflicts, time and billing issues can present unnecessary drama, and opinions may diverge at critical stages in the litigation.

We offer practical tips based on our experiences—especially in larger class actions and multidistrict litigation—for selecting the right co-counsel and then nourishing those relationships.

Select the Right Co-Counsel for Your Firm

Before moving forward with another attorney or firm, be sure to evaluate what you are seeking in co-counsel. While many attorneys may have the necessary subject matter expertise or be geographically convenient for your particular case, we recommend assessing a variety of factors:

1. Are there certain personality traits you value in other attorneys?
2. Would you prefer partnering with a solo attorney, a boutique firm, or a larger firm?
3. Are you looking for diversity in the roster of attorneys, such as a women-owned or minority-owned firm?
4. Do billing rates matter to you or the client?
5. Has the other attorney litigated against similar or identical opposing parties or counsel?
6. Does the other attorney have a litigation style similar to yours?

Above all, if you have never worked with them, ask as many questions as possible to get to know them.

Enter into a Co-Counsel Agreement

No matter whom you select as co-counsel, draft and negotiate a thorough co-counsel agreement at the beginning of the matter. These agreements—when drafted appropriately—can prevent many disputes from arising during or after the litigation. Attorneys should certainly include provisions relating to the following issues: fee and expense apportionment between attorneys and clients; necessary divisions of labor; and how disputes about fees or expenses will be resolved (e.g., mediation). The agreement can also address, when applicable, conflicts of interest, court filing responsibilities, and any issues relating to the costs of the litigation.

In class actions, these agreements could very well require modification or be rendered moot after additional law firms or attorneys are appointed by the court. For example, two firms may enter into a co-counsel agreement when the initial class action is filed, but if a court subsequently appoints two additional firms to serve as class counsel or on a steering committee, the initial agreement would not be broad enough to encompass the newly added firms. In these circumstances, firms should either renegotiate the initial agreement or simply draft an entirely new one.

Regardless, this initial phase is important to any co-counsel relationship. Use the agreement negotiations as a platform to anticipate any difficulties or sticking points in the relationship.

Communicate, Communicate, Communicate

Once you select co-counsel and have finalized a co-counsel agreement, do your best to routinely communicate during the litigation. Even if the other firm is acting purely as local counsel to handle court filings and other smaller tasks, every attorney on the team should be aware of important updates and strategies. In our collective experience, co-counsel relationships generally fall into disrepair due to poor communication.

We know that scheduling regular conference calls or Zoom meetings can be exhausting, to say the least. But brief emails can save attorneys from those unnecessary calls. Do your best to avoid the phone where nothing needs to be discussed or debated—instead, use emails for informational updates. Use bullet points or numbered lists, and co-counsel will likely appreciate being able to get up to speed on their own schedule. This is particularly helpful in cases with more than two firms (or, in the case of class actions, dozens of firms). In addition, emails can help set expectations about the division of labor or upcoming deadlines. We cannot stress this enough: Make everyone aware of what needs to be done and when it needs to be completed.

For mission-critical decisions, we recommend using Zoom. Face-to-face meetings—even through a computer screen—can make for more effective and thoughtful communications. All too often, conference calls remove the human element. Remember that other attorneys may have different perspectives; try to be a good listener before offering your own viewpoint.

Remember the Client

In litigation with co-counsel, the attorneys are fighting for the same outcome: the client’s success. Still, when your co-counsel is wedded to an opposite litigation strategy in a contentious case, attorneys can easily forget about the client. All too often, attorneys can take these issues personally and dig in. We find these disputes to be counterproductive. Do your best to step away and remember why you got involved in the case in the first place. Whether you are litigating a small breach of contract matter or navigating a complicated multiparty class action, leave your ego at the door and invite your co-counsel to do the same. After all, your efforts are best directed toward securing a victory and neutralizing opposing counsel.