Co-counsel relationships are often formed "on the fly" without thorough discussion as to "who will be responsible for what." Moving forward quickly typically is the driving force. This can be a disaster if each attorney assumes the other will meet a critical deadline, and as a result the deadline is missed. Blown statute of limitation dates or other missed filing deadlines are common in co-counsel relationships. This situation can get even messier if one of the attorneys is uninsured – for example, the out-of-state attorney for whom you are acting as local counsel. This is just one example of what I have come to call "the mistake of assumed competency."
Another scenario that has been shared with me a number of times goes something like this. Local counsel has worked with an out-of-state firm for a number of years or on a number of cases and the work done by the out-of-state firm has consistently been of high quality. As a result local counsel becomes less and less vigilant in staying on top of the case, eventually just signing documents or appearing with out-of-state counsel as necessary. In one situation along these lines, an attorney shared that the matter in which he was acting as local counsel ended up going to trial. When the judge entered the courtroom he informed out-of-state counsel that her documents were not in order and as a result she would not be able to try the case. Local counsel then was required to try the case, and thanks to his total reliance on out-of-state counsel, he was completely unprepared. The case was tried and it was apparent to everyone in the courtroom, including the client, just what had happened. The local attorney reported that this experience was the most horrific experience of his career. By assuming that everything was in order, he created his own professional nightmare.
Perhaps there was a time when, out of professional courtesy, we could assume that our professional colleagues were competent. However, the frequency and severity of malpractice claims throughout the country indicate that the time for such courtesy has passed. Consider the fact that 56% of all malpractice claims during the latter half of the 1990s arose as a result of a substantive legal error. The old adage of "there is no such thing as a free lunch" is an apt metaphor here. Assumptions about co-counsel can lead to serious malpractice exposure. But don’t despair, because all is not lost. There are a few practices that can significantly reduce your exposure for co-counsel’s malpractice.
When considering entering into a co-counsel relationship with an attorney about whom little is known, investigate the attorney before committing yourself to the relationship. You might ask for recommendations or references, conduct a background check, interview the attorney, and/or contact area judges or attorneys who practice in the same field, to ask about prospective co-counsel’s competence and reliability.
No matter whether you investigate the prospective co-counsel, always make certain that you closely track the critical dates calendar on all co-counsel matters, and follow up with your co-counsel. Be sure to do this prior to each and every critical deadline for work that you believe to be your co-counsel’s responsibility. Remember, this holds true even on those co-counsel matters in which your involvement has been limited to nothing more than a local contact with an accompanying "referral" fee. You are still fully exposed to the other counsel’s malpractice. If you get out of the co-counsel relationship, get all the way out – this means you should not be receiving a referral fee. If you stay in the co-counsel relationship, be responsible and at the very least, monitor the critical dates calendar to be sure that co-counsel does not miss any critical action deadlines on the calendar.
A final recommended practice is to make certain that your prospective co-counsel is adequately insured. Do not accept co-counsel’s verbal assurances. I have had attorneys tell me that they will say that they are insured to get work, when in fact they are practicing "bare." Financial pressures in competitive markets can cause a few attorneys to take risks. This means you need to get written proof that the co-counsel is adequately covered. Swap copies of each other’s malpractice policy declaration page. If you find it hard to open this conversation, place the responsibility on your malpractice carrier. A request framed as "my malpractice carrier requires verification of your coverage" can work wonders.
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