DC Injury Co-Counsel: Ethical Issues

While co-counsel can be very helpful to a lawyer and someone’s case, there are always possibilities for issues to arise. These issues can be exacerbated if the lawyers serving as co-counsel are both independent practitioners or work for competing law firms. Call and schedule a consultation with our firm’s DC injury lawyers for help in minimizing any potential conflicts with two or more attorneys working for one client.

Practical & Ethical Issues Working With Other Lawyers

There are a number of practical and ethical issues that could come up whenever an attorney is handling a case with another attorney. The first issue, typically, is ensuring the joint retainer agreement or the consent to associate agreement is compliant with the court’s ethics rules. Primary among these rules is the fee issue. As discussed above, the fee arrangement must be in writing and disclosed to the client. 

The other issue that can arise is, generally, how the case is going to be handled. Ultimately, it is the attorneys’ job to act in the best interest of their client. Thus, if the attorneys cannot agree on how a certain aspect of the case will be handled, such as incurring the costs of certain depositions, than the attorneys need to resolve the issue while keeping the best interests of the client in mind. 

Confidentiality Issues

Generally speaking, there are no confidentiality issues between the attorneys. Both attorneys owe a duty of confidentiality to the client. Likewise, the client should understand that the relationship is confidential and the client should disclose any and all information to the attorneys. 

Conflicts of Interest

A conflict of interest is typically when two persons’ interests are no longer aligned with each other. Sometimes there may be a situation that involves very complicated fact patterns. The case may begin with all counsel and parties interests being aligned, but as more information is discovered, then a conflict may arise.

Counsel should continuously evaluate the relationship with both co-counsel and with the client and ensure that all of their interests are aligned, meaning they all have the same theory of liability among other issues. 

If any of those issues change, and a conflict of interest arises.  The person with the conflict must disclose the conflict and obtain a waiver from the client or the attorney in conflict must withdraw from the case.

Liabilities for Breaches of Co-Counsel Fiduciary Duty or Malpractice

The liability that exists to the client by both attorneys really depends upon the joint retainer agreement or the co-counsel agreement that is entered into between the attorneys. If the attorneys have agreed to share the responsibility of that case and ultimately share the fee that is recovered in that case, then both attorneys typically share liability to the client if there’s any malpractice or wrongdoing.

If, on the other hand, the retainer agreement spells out a very limited role to the referring attorney, then likely in that situation, the referring attorney would be spared from any malpractice claims or liability to the client. Like most areas of the law, the ultimate determination of responsibility really depends upon the facts of that case and the issue that gives rise to the malpractice claim. 

Competent Co-Counsel in Minimizing Malpractice Issues

It goes to that saying that you always want to have competent co-counsel. Whenever anyone enters into a co-counsel agreement, they should do it based upon that attorney’s good reputation or prior experience in handling a case very well.

If the referring attorney runs the possibility of being liable to the client for malpractice or other wrongdoing, then ensuring that co-counsel is competent should minimize this risk to the referring attorney.

There is always a duty of practicing attorneys to report malpractice. This is especially true when an attorney is representing a client. If a co-counsel commits malpractice, that is not in the best interest of his client, and he has the responsibility to do something about it.