Filter Results CategoriesCart
Highlight Updates

1.5 Co-Counseling with Other Attorneys

Class action cases are often prosecuted by two or more law firms working together. Sometimes this results from court orders coordinating or consolidating multiple class action cases involving the same or similar wrongdoing.

Even when only one case is involved, lawyers frequently decide to co-counsel with another firm (or several firms) to prosecute a class action case. There are several potential advantages to such co-counseling. Some—such as sharing of the time and cost required to litigate the case, availability of the skills and expertise of different lawyers, and the value of different perspectives on case strategy—apply to any complex case, not just to class actions.

There are additional reasons to find co-counsel for class actions. One of the factors considered by the courts in deciding whether to certify a class action is whether the interests of the class are “adequately” protected.31 This includes the consideration of whether plaintiff’s counsel is qualified, experienced and generally able to conduct the litigation vigorously.32 Thus, inexperienced counsel may benefit from association with more experienced lawyers. Furthermore, if the decision is made to file the action in a jurisdiction where plaintiff’s counsel is not admitted, it will generally be necessary to retain local counsel admitted to practice in that jurisdiction.

However, the disadvantages of co-counseling must also be considered. Coordination and communication between firms may in some cases involve a substantial expenditure of time not otherwise necessary to prosecute the action. Moreover, a sharing of the costs and effort of litigating a case means that the prospective fee upon success will have to be shared as well.

When co-counseling occurs, it is wise to clearly set forth in writing the respective rights and obligations of the various participating law firms and how fees will be shared. An understanding before suit is filed avoids both disputes as to fees and work falling between the cracks. The agreement between firms should set forth procedures to eliminate waste and unnecessary duplication of effort by counsel. This will help avoid later disputes between counsel or the court denying on that basis part of the fees requested.

A written document is essential in helping to avoid misunderstandings or disputes between counselors to quickly resolve disputes should they arise at the conclusion of a case.33 Topics to be covered include the expected role and responsibilities of each firm in prosecuting the case, how fees will be divided between the firms, and how the burden of advancing litigation costs will be shared. The working agreement should clearly state who will be responsible for coordinating the litigation, discovery, document management, locating and preparing experts, and making work assignments. It is also advisable that the document call for the submission of time and work records on a periodic basis to lead counsel and that these records periodically be summarized and distributed to the law firms working on the case. If all counsel are aware of the work and time being spent by co-counsel on the case as the case progresses, there should be no surprises and no disputes when the attorney fees are distributed and the majority of these fees is requested by counsel who performed most of the work. A sample co-counseling agreement is provided in Appendix E, infra, and another is available as a Word document online as companion material to this treatise.

Footnotes

  • 31 {31} Fed. R. Civ. P. 23(a)(4).

  • 32 {32} See § 10.3.4.2, infra.

  • 33 {33} In addition, state codes of professional conduct may require written disclosure to the client of any co-counseling or fee-splitting agreements.