CHAPTER #3

10:15 – 10:45am

Use of Co-Counsel to Expand Your Reach

Rebecca Ary

The Law Office of Rebecca E. Ary

J. Denise Diskin Teller & Associates PLLC

Electronic format only: 1. RPC 1.5(e) 2. Sample Fee Agreement 3. Sample Agreement to Associate 4. Sample Co-Representation Agreement 5. Sample Contract Agreement 6. Additional Excerpts

The electronic version of all of the documents are available on the KCBA website: https://www.kcba.org/cle/EventDetails.aspx?Event=4612

RPC 1.5(e) A division of a fee between lawyers who are not in the same firm may be made only if: (1) (i) the division is in proportion to the services provided by each lawyer or each lawyer assumes joint responsibility for the representation; (ii) the client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing; and (iii) the total fee is reasonable; or (2) the division is between the lawyer and a duly authorized lawyer referral service of either the Washington State Bar Association or of one of the county bar associations of this state. COMMENT Division of Fee [7] A division of fee is a single billing to a client covering the fee of two or more lawyers who are not in the same firm. A division of fee facilitates association of more than one lawyer in a matter in which neither alone could serve the client as well, and most often is used when the fee is contingent and the division is between a referring lawyer and a trial specialist. Paragraph (e) permits the lawyers to divide a fee either on the basis of the proportion of services they render or if each lawyer assumes responsibility for the representation as a whole. In addition, the client must agree to the arrangement, including the share that each lawyer is to receive, and the agreement must be confirmed in writing. Contingent fee agreements must be in a writing signed by the client and must otherwise comply with paragraph (c) of this Rule. Joint responsibility for the representation entails financial and ethical responsibility for the representation as if the lawyers were associated in a partnership. A lawyer should only refer a matter to a lawyer whom the referring lawyer reasonably believes is competent to handle the matter. See Rule 1.1. [8] Paragraph (e) does not prohibit or regulate division of fees to be received in the future for work done when lawyers were previously associated in a law firm.

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Sample Stand-Alone Fee Splitting Agreement for Bringing in Co-Counsel Midstream

[Date]

[Client]

Re: Fee Splitting

Dear [Client],

We would like to work as co-counsel on your case. If you consent to this, we would take

joint responsibility for work on your case. You would pay the same fee as outlined by your

original fee agreement with [original counsel]. Any fee we earn would be split equally between

us. Your signature below indicates you understand and agree to this division of fees.

You may consult another attorney or other advisor about this agreement before signing.

Very truly yours,

[Diligent Attorneys]

Accepted this _____ day of ________.

_________________________ [Client]

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Sample Fee-Splitting Clause in a Fee Agreement

[First Attorney’s] hourly rate is $____ and [Second Attorney’s] hourly rate is $____. We (the

two attorneys) are going to split the attorney’s fees in proportion to our hourly rates multiplied

by the hours we work on your case. Each lawyer assumes joint responsibility for your case.

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SAMPLE Agreement to Associate

RE: [case]

This agreement is to confirm the agreement of [ATTORNEY/FIRM A] and [ATTORNEY/FIRM B] to associate on the above referenced case. [GENERAL DESCRIPTION OF CASE AND CURRENT PROCEDURAL STANDING]

[FIRM B] will associate on this matter and provide assistance on all pre trial matters and will “second chair” the case at trial. This is anticipated to include, but may not be limited to, work on all of the following: witness preparation, trial strategy, motions in limine, mediation, jury instructions, trial brief, voir dire, jury questionnaire, all pre trial court filings, trial, and any post trial work such as a petition for fees.

[FIRM A] has carried all costs incurred in handling the case and has maintained the client funds in an IOLTA trust account, and will continue to do so. [FIRM B] acknowledges that this file is a “King County Lawyer Referral Service” matter and therefore 10% of any attorneys’ fees recovered must be transmitted to King County Lawyer Referral Service.

[FIRM B] will primarily be compensated by way of a contingency fee based upon recovery.

If this case settles, is awarded judgment, or if fees are awarded after trial, any attorneys fees recovered will be divided as follows (after the deduction of 10% to King County Lawyer Referral Service):

a. [X]% of the total to [FIRM A] in recognition of carrying costs and handling administration; b. [X]% of the total divided pro rata based on hours worked on the case without respect to

hourly fee of each attorney.

This agreement shall be effective upon the signature of both parties, and may be executed in parts, and an electronic signature shall be valid.

If any disputes regarding this agreement arise at any time, the Parties shall attempt to resolve any such dispute through good faith efforts. If, after good faith efforts, the Parties are unable to agree, then the Parties will seek resolution of any such dispute by submitting the said dispute to binding arbitration in front of a mutually agreeable arbitrator. The Parties agree to be bound by such ruling and the prevailing party shall be awarded the costs of any dispute resolution proceeding.

The Parties to this agreement knowingly and expressly disclaim and hereby waive any right or ability to assert the lack of enforceability of this Agreement or to challenge the adequacy of enforceability of this Agreement before any court, arbitrator, or mediator. This Agreement constitutes the full and complete agreement between the Parties.

DATED this ____ day of [DATE].

_________________________________ ______________________________ [FIRM A ATTORNEY] [FIRM B ATTORNEY]

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LIMITED SCOPE CO-REPRESENTATION AGREEMENT

BETWEEN LAWYERS

This agreement is between [ATTORNEY/FIRM A] and [ATTORNEY/FIRM B] (collectively “the Parties”). This agreement establishes the relationship between two lawyers in the representation of [CLIENT] in a matter of [CLAIMS].

1. The attorneys’ fees in the case will be shared as follows: a. [FIRM A] and [FIRM B] agree that the proportion of the fee recovered in the case

will be apportioned as follows: i. _____% of the judgment shall be apportioned with [FIRM B] receiving

_____% after deduction of expenses and costs, and [FIRM A] receiving _____%.

ii. The remaining ______% of the judgment shall be apportioned to [FIRM A] and [FIRM B] according to the hours worked on the case. The Parties shall be responsible for accounting for the hours worked on the case by recording the date, amount of time spent, and a brief description of the work performed.

2. [FIRM A AND B] will be jointly responsible for the case, and we have advised the Client of the basis upon which we are sharing the fee. We will handle the day-to-day work up of the case, including but not limited to: preparing and filing a complaint, responding to and propounding discovery on the defendant, handling the plaintiff’s deposition and other depositions, liability work up of the case through trial and any appeals, and settlement proceedings, if any.

3. [FIRM B] will assume the role of lead counsel and be responsible for expenses. 4. Expenses will be reimbursed out of settlements or judgments received pursuant to the

provisions in paragraph one above. In the event that [FIRM A] incurs expenses in connection with the matter, they will be reimbursed at the conclusion of the matter. In the event no recovery is obtained sufficient to cover expenses, the expenses will be borne by [FIRM B], except for those actual expenses already incurred by [FIRM A].

5. For Clients’ information and benefit, the parties agree that nothing in this agreement changes the terms of representation between [FIRM B] and Clients.

6. If any disputes regarding this agreement arise at any time, the Parties shall attempt to resolve any such dispute through good faith efforts. If, after good faith efforts, the Parties are unable to agree, then the Parties will seek resolution of any such dispute by submitting the said dispute to binding arbitration in front of a mutually agreeable

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arbitrator. The Parties agree to be bound by such ruling and the prevailing party shall be awarded the costs of any dispute resolution proceeding.

7. The Parties to this agreement knowingly and expressly disclaim and hereby waive any right or ability to assert the lack of enforceability of this Agreement or to challenge the adequacy of enforceability of this Agreement before any court, arbitrator, or mediator. This Agreement constitutes the full and complete agreement between the Parties. DATED as of this _____ day of _______,_____. [SIGNATURES]

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SAMPLE CONTRACT AGREEMENT [Solo/small firm] and I as its sole proprietor, [attorney], agree to serve as a contract attorney performing legal services for [firm] beginning [date].

For legal services, typically including but not limited to legal research and writing, I charge a rate of [amount] per hour worked, prorated to six minute increments. I agree to [description of services, project, start/end dates, projected hours, etc]

I will report hours worked to [firm] on a monthly basis in a timesheet identifying the case worked on, date the work was performed, the hours worked each day, prorated to six minute increments, and a general description of the work performed. I ask that [firm] pay for my services by check, made out to [solo/small firm], either by postal mail or hand delivery, within 15 days of receiving my timesheet, regardless of whether [firm] has been paid her fees or costs for the case.

I agree to maintain confidentiality appropriate to the attorney-client relationship, and to alert [firm] immediately should any conflict of interest arise that would bar me from working in compliance with the Rules of Professional Conduct. Please indicate your agreement to these terms in a response email. Thanks, and I look forward to working together! Best, [attorney]

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