"x x x.
The co-counsel agreement
Divvying up the recovery according to hours worked (usually after subtracting a percentage “off the top” for the lawyer who found the client or is bearing the costs) is intuitively fair, but it means the party assigning the work has a lot of control over who eventually gets paid. I like this arrangement when you know and trust the other lawyer, but it is risky when you are co-counseling for the first time.
One solution is to assign the role of lead counsel to yourself, making you the person who decides which lawyer does what. After all, if you are looking for experience, you probably want to do your own first drafts and get your co-counsel’s feedback on them, instead of the other way around. So put yourself in charge of the case.
If you do have more of a “ride-along” in mind, insist on a minimum percentage of the recovery, which will be increased if you share of the hours billed exceeds your minimum share of the recovery. That gives your co-counsel an incentive to give you some real work, while rewarding you if you do a lot. In other words, decide what is the smallest share of the work that you want to do, and make that your minimum.
Finally, you can just set straight percentages. One lawyer I have worked with always divides the proceeds 50-50. This works fine with a lawyer you are confident you can trust to do about half the work, but it can also encourage a “group work” mentality where one lawyer does all the work, and the other lawyer still collects half the reward.
Of these options, I prefer to (1) reimburse everyone’s out-of-pocket costs, (2) calculate the attorney fee under the retainer and give the client his share, (3) give the party that fronted the litigation costs 10% of the fee, and (4) if the party that got the client is not the same as #3, give her a 20% minimum, with an extra share if her proportion of time billed exceeds 20% of the total time billed (calculated by dollar amount, not time).
(I like to include an illustration of the expected calculations using round numbers, which helps ensure everyone is in the same page.)
x x x."
