You’ve got a case, but you are feeling a bit over your head on one or more of the issues involved. Before you take a pass on the case, consider associating another attorney who has the expertise you lack. It can be win-win-win: for you, the other attorney, and your client.
Associating another attorney goes a long way back. In 1934, the California Supreme Court took judicial notice of the custom that attorneys employ other attorneys “to assist in legal work placed in their care, including appearances in court without the formality of being made attorneys of record.” Raskin v Superior Court (1934) 138 CA 668, 33 P2d 35.
With a job market forcing many law graduates to go solo and take on cases right out of law school, associating with an experienced attorney might be just the right solution.
Here are the basic rules around associating attorneys:
- Get client’s ok. Although you don’t need client consent to associate with another attorney for general guidance or to present a hypothetical, you do need your client’s consent to reveal confidential information under Cal Rules of Prof Conduct 3-100.
- Attorneys decide how to divide the work. If you associate another attorney, it is up to you and the other attorney to divide the work involved with the case.
- No substitution needed. Unless the associated attorney claims to act as the sole attorney, it’s unnecessary to prepare a substitution of attorney.
- Choose a relationship. The association can be either a joint venture between you and the other attorney(s) sharing the fees or an employment relationship, but not both.
- Client must ok fee-splitting. If you make a fee-splitting agreement, your client has to consent in writing after full written disclosure of the division of fees, which division may, but need not, be in proportion to the services performed by the attorneys, and the total fee charged must not be increased solely because of the fee division.
- Client owes only original attorney. Your agreement with associated counsel for compensation doesn’t mean that the client is obligated to pay the associated attorney unless the client authorizes payment or ratifies the agreement to be obligated.
If the associated counsel will take a substantial role in conducting the litigation, it is good practice, though unnecessary, to file a notice of association. The notice should contain the name, mailing address, and telephone number of the associate counsel, and should be filed with the court and served on all attorneys of record. Because the client’s consent isn’t required, only the attorney of record needs to sign the notice.
Want a sample form of association? Need more information on changing representation during a case? Turn to CEB’s California Civil Procedure Before Trial, chap 4.
Related CEB blog post:
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