From the Multnomah Lawyer: Ask the Expert: Co-Counseling with a Friend

Dear Expert,
My attorney friend approached me about co-counseling a case. We’ve been friends since law school, and
I think it could be fun. What are some considerations I should take into account before deciding?

Co-counseling a case with a friend can be a very rewarding experience, if you are careful. Before you decide you should think about the human factors involved. Is this a friend who you trust? Is this a friend who if something goes south you would be able to work through the issues? If you are not sure, is it worth risking the friendship? These are all personal questions that you should consider, and to which only you and your friend might have the answers.

Another thing to consider is your friend’s quality of work. At the end of the day, you will be responsible for your friend’s work and vice versa. Are you comfortable with that? You may consider looking at any work of theirs that is available on OECI.  

Also consider your friend’s working style. Everyone is different, and sometimes different styles are incompatible (but sometimes they are especially complementary).
For example, some people are chronic procrastinators, others are very organized. You should consider compatibility in all of its permutations. Think back to law school. Did you work on any projects together or study together? How well did it work out? Have you discussed their current law practice, and are you generally on the same page professionally?

Even if you know the answers to all of these questions, do you know any people your friend has co-counseled with before? If you and your friend are comfortable with it, ask them to talk about how it went.

Oregon rule of Professional Conduct (ORPC) 1.5(d) allows for the splitting of fees between lawyers of different firms, but requires the lawyer to get informed consent from the client regarding the fact that fees will be divided, and the total fee charged may not be clearly excessive. Pursuant to ORPC 1.0(g), informed consent requires you to communicate both the risks, and any alternatives of a proposed course of action. Consent need not be in writing, but I recommend it to be. The factors in evaluating whether a fee is excessive are contained in ORPC 1.5(b), and include among other factors the customary fees in the community and skill required.

If you decide to co-counsel, make sure to determine the split of workload, fees, and costs at the outset. Do not assume that everything will be split 50/50. If you are unsure about your agreement, go ahead and put the details in writing, even if it’s an email summarizing the agreement. If things go awry, you will not have to rely on oral discussion or assumptions. One option other than 50/50 is to split the fee based on work put in. Be wary of this sort of arrangement, because sometimes lawyers, maliciously or not, inflate their hours or spend more hours on tasks than they otherwise would. If you do go with this sort of arrangement, it is a good idea to check in regularly with your co-counsel to make sure you are on the same page regarding your relative contributions.

Finally, before you begin, it is a good idea to introduce the client to your co-counsel, in order to make sure that the client feels comfortable with the arrangement.

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