When your co-counsel is disbarred

Pat and Chris were never partners. But they focused their careers on the same practice area and enjoyed mutual respect. As a result, Pat and Chris began pooling the resources of their solo firms to jointly represent clients in more complex - and more costly - litigation. And they agreed, with written client consent, to share the fees equally. This practice served a number of ends, including collaboration to address more challenging matters and diversification of risk in contingency cases.

While Pat and Chris were in the middle of jointly representing a number of clients at various stages of litigation, Chris was disbarred for a matter that Pat was not involved in. Pat was left scrambling in the other litigation matters they shared. On top of that, Chris started demanding that Pat still distribute any proceeds equally between them both, especially in those cases where Chris made the initial contacts with the clients.

Pat now wisely consults with ethics counsel on what should be done. And ethics counsel provides Pat with the following sage advice.

Duty of communication

Attorneys are required under both the Rules of Professional Conduct (Rule 3-500) and the State Bar Act (Business and Professions Code Section 6068(m)) to keep their clients reasonably informed about significant developments relating to their representation. The inability of counsel to provide legal services, whether due to discipline, the onset of some impairment, or another reason, is unquestionably a significant development. This is particularly significant where, as here, there is no practical ability to re-staff the matter with other well-qualified attorneys from within the firm. So, Pat will need to inform the clients that Chris will not be able to continue the representation.

Indeed, Pat cannot work around Chris' disbarment by simply having Chris independently work in the background on the matter. That would be aiding in the unauthorized practice of law in violation of Rule 1-300. Likewise, Pat cannot silently bring Chris in as an employee to perform the same tasks Chris was previously working on. Rule 1-311 limits disbarred attorneys from providing services beyond clerical tasks. Moreover, it requires the employing attorney to notify both the State Bar and clients whose matters that the disbarred attorney is working on of the employment.

Duty of competence

Attorneys have an ongoing duty to possess the learning, skill, and mental, emotional, and physical ability reasonably necessary to represent their clients. Of course, there are many instances where an attorney may not possess such characteristics to handle every aspect of a representation without violating ethical duties. That is because, under Rule 3-110(C), attorneys may associate with others who have the abilities they lack.

Pat and Chris may have teamed up because they recognized the potential for a synergistic relationship. That is, each benefited from skills the other possessed. Unfortunately, this opportunity is now gone following Chris' discipline. Pat must assess whether there are sufficient resources, including time, ability, and funding to continue to represent the clients without Chris. Pat should communicate the results of this self-assessment. And, if Pat does not have the means to continue the representations alone, Pat should request the clients associate in additional counsel. If the clients are unable or unwilling to do so, then Rule 3-700(B)(2) will require Pat to seek withdrawal, since continuing the representations would lead to a violation of the Rules of Professional Conduct.

Attorney fees

Ethics counsel also advises Pat that the initial contemplated division of contingency fees will no longer be possible. Rule 1-320(A) generally precludes attorneys from sharing fees with non-lawyers. That is not to say that Chris would be unable to recover any amount should the clients recover. But Chris' recovery would be limited to quantum meruit for the services performed while Chris was still authorized to practice law. Chris may not be compensated with a percentage recovery of the entire litigation, part of which is ongoing while disbarment precludes Chris from providing legal services.

Any claims that Chris should somehow be compensated in excess of that amount for originating the work would be unavailing. Rule 1-320(B) provides that attorneys may not give anything of value to any person for recommending or securing employment of legal services. Rule 2-200(B) contains an exception, which permits attorneys to pay referral fees to other attorneys who do not work on the case so long as the payment complies with Rule 2-200(A). This is consistent with Rule 1-320(A), in that it avoids the indirect sharing of legal fees with a person who is not a lawyer.

Pat thanks ethics counsel and returns to the office to assess each case, determine which ones may be handled without associating in new counsel, and to advise the clients accordingly. Pat also plans to contact Chris to discuss that Pat is ethically precluded from sharing more than the value of the services that Chris provided while still authorized to practice.

Pat's predicament is not necessarily unique to lawyers who team up with colleagues who are disbarred. This could also arise in other contexts, such as where illness, disability, or death forces an attorney to stop practicing, though those situations do involve an additional layer of analysis. Regardless of the reason why co-counsel is lost, attorneys should be careful to assess the impact of the situation and develop a strategy with the clients on how to address it.