The following article should help those attorneys contemplating the idea of a joint venture with one or more attorneys. The article was authored by Paul Schorn and originally published on Law.com.
awyers are like hounds on a hunt: Sometimes one just isn't enough. Some cases call for a team of lawyers to come at the problem from different directions to ensure success. Solos are well-suited to joint ventures by their tremendous flexibility. They can jump into working relationships without seeking approval from any committee and can form ad hoc alliances tailored to address specific disputes. This column will address some of the questions a solo practitioner should ask before teaming up.
1. Does a joint venture make sense?
Too many cooks can spoil the broth (or the closing argument), so do not enter into a joint venture unless it clearly helps the case. Co-counsel makes sense, for example, where a dispute straddles several substantive areas of the law, a party must bring a claim in an unfamiliar venue, or the resources required or the risks involved are greater than normal. If a solo has the knowledge, experience, time and money to handle a case, he probably ought to do it himself. This is especially true given that working within a joint venture increases the time and effort it will take to coordinate representation, as each decision must be (at least) communicated, and potentially involves disagreement, discussion and consensus building (anathema to many solos).
2. Who do I want on my team?
Quality counts. A solo should strive to work with lawyers who are better than she is -- smarter, more experienced, wiser. Character counts as well. A solo should not joint venture any case with someone unless she would feel comfortable standing next to that lawyer at the counsel table in open court.
Another tip: Avoid teaming up with your identical twin. Joint ventures work best when they involve lawyers whose strengths complement each other. Each attorney should bring something unique to the case. The classic example is a practitioner in a particular area of the law who teams up with a litigator to bring a case to trial. Similarly, a lawyer in one geographical area might join forces with local counsel in an area where the case is pending, or a solo might involve a lawyer who has already had conspicuous success with a specific type of claim to increase the chances of obtaining a reasonable settlement more quickly or winning the case at trial.
3. How should we divide the pie?
Joint venturers should be clear about the division of labor. Leave no room for confusion about who will draft pleadings, answer discovery, act as the primary client contact or negotiate with the opposition. Designate one lawyer as lead counsel, whether or not suit has been filed. Come to a general understanding about the kind of decisions that each attorney can make unilaterally and the kind that require agreement.
Make clear how lawyers will handle case expenses not covered by the client. It usually makes sense to have one attorney responsible for all such costs to avoid any I-thought-you-paid-that-bill confusion, though this might not be possible where lawyers formed the joint venture to cover especially large expenses. In such cases, divide costs by categories, i.e. "I'll pay for the filing fees, business records and court reporters; you pay for the expert witnesses, mediation costs and everything else."
Of course, division of the fee must also be crystal clear -- preferably equal shares for all. But this might not make sense where lawyers do not share equally the labor or risk. If one lawyer in a two-lawyer venture carries the case expenses, she probably should receive a greater share of the fee (say, 60 percent instead of half).
It makes sense to have a written joint venture agreement; however, in the interest of full disclosure, I have to say that I've done 90 percent of my joint ventures on a handshake and never suffered a regret. It has always seemed to me that I shouldn't partner up -- even for a single case -- with anyone I didn't trust deeply.
4. What are the larger effects of teaming up?
A solo should also consider the effect of a joint venture on her practice. This type of partnership can allow a solo to work on more and bigger cases and earn larger fees. It can also increase the solo's stream of business, as battle-tested co-counsel often become strong sources of referrals. It is not uncommon for joint venture partners to become good friends -- no small consideration given the potential isolation of solo practice.
Solos who are fortunate enough to partner up with better known co-counsel when joint venturing cases can also increase their standing in the bar, like the poor farmer who entered his tired old mule in the Kentucky Derby. Told by race officials that his broken-down beast had no chance to win, the farmer replied, "I know, but I thought he'd benefit from the association."
Contrary to common perception, working as a solo presents endless opportunities for collaboration. Choosing joint ventures wisely is the key to success. Just because a solo is a lone wolf doesn't mean that, every now and again, he can't run with the hounds.
Paul Schorn is a solo practitioner with offices in Lockhart and Austin, Texas.
http://www.law.com/jsp/law/sfb/lawArticleSFB.jsp?id=1202428476148
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