Bringing another lawyer into a file is common. The reason may be a particular body of law, an unfamiliar court, or the wish for a second view before a major step.
It works when the arrangement is set up deliberately. It goes wrong when the scope is vague, the client is unsure who is doing what, or two lawyers each assume the other is watching a deadline.
Decide the structure first
Consulting counsel, not of record. Advises lead counsel and, through lead counsel, the client. Lead counsel signs everything and appears.
Co-counsel of record. Shared carriage, with issues or tasks divided between the two.
Agent. Files or appears on lead counsel's instructions, in a court or place where lead counsel does not usually practise.
The second structural question is who retains the incoming lawyer. A direct retainer with the client is usually cleaner. Duties, privilege, and billing are all easier to explain when the client has signed.
Put it in writing
An engagement letter should cover:
Scope. The issues, the tasks, and what is excluded. For a limited scope retainer, the Law Society of Ontario's rules require candid advice to the client about the nature, extent, and scope of the services, confirmed in writing.
Who instructs and who decides.
Deadlines. Who is responsible for limitation periods and court dates. Say it explicitly.
Fees. The basis, and who bills whom. Where lawyers at different firms divide a fee, the rules require the client's consent, and a division in proportion to work done and responsibility assumed. Referral fees are regulated separately.
Client contact. Direct, or through lead counsel.
Insurance. Each lawyer carries their own.
Conflicts and confidentiality
Consulting counsel must clear conflicts before receiving confidential information. The first approach should give the names of the parties and the nature of the dispute, and nothing more.
On privilege, communications among a client's lawyers for the purpose of advising that client are protected. Set up the retainer so that consulting counsel is plainly acting for the client. Keep the role distinct from that of any expert, whose file may be treated differently.
Make it work day to day
Involve them early. Before pleadings, before the forum is chosen, before the expert is retained. The early decisions are where most of the value lies.
Give access to the record, not summaries of it.
Keep one decision-maker. Consulting counsel advises. Lead counsel decides, with the client.
Define the deliverable. A memo, a markup, a section of the factum, a cross-examination outline.
Set a rhythm. A short call at the start of each phase does more than long emails.
Estimate each task. No one should be surprised by an account.
What it is good for
A second opinion on strategy before an expensive step.
An area of law that will decide an issue, such as intellectual property.
A court with its own procedure, such as the Federal Court.
A motion or appeal factum on a discrete point.
Preparing to cross-examine a technical expert.
Capacity during a surge, such as an urgent injunction.
The etiquette
Consulting counsel does not take the client. That should be said at the outset and honoured afterward.
Lead counsel, for their part, should tell the client plainly who is involved and why. Clients tend to be reassured, not unsettled, when their lawyer brings in help on the point that matters.
wu law. provides co-counsel, agency and consulting services to other firms. To discuss a file, send the names of the parties and a line about the dispute so that we can check for conflicts first.
This post is general information for lawyers. It is not legal advice.
