Acting as co-counsel with UK and foreign law firms

This guidance applies to working as a co-counsel with another UK or foreign law firm. We can only co-counsel with other law firms. Any request to work closely with a non-law firm is a standard retainer.

Co-counsel is an arrangement where we assist another law firm with a matter for their client. That other firm will be the lead firm, and our scope of services will be defined to do the things they cannot do. This might be an area of English law outside their current capacity or it might be an international project where we are advising on English Law issues only. Either way, we are engaged directly by their client, but we can ensure the ultimate client experiences a seamless service.

In common with all large London firms, we would prefer to use our broad and deep expertise to win the entirety of the work exclusively, rather that only do part of it. Where this is not possible, we can co-counsel with another firm.

Sometimes we are asked to act only for the other firm. If our advice is generic (i.e. we don't know the ultimate client's identity, or there may not be one and we are dealing only with the other firm), then we can act only for the other firm. In this case, we would need to caveat our advice that it is based only on the instructions we have received and we do not assume any liability to any client of the other firm. If they want to use our advice as part of their advice to one of their clients, then we should suggest they come back to us and allow us to check it can be used for that purpose/amend it so it can be. That in turn would require a new direct retainer with the ultimate client. You would also need a direct retainer where you can clearly work out the identity of the end client with some certainty, then you cannot say you don't know the end client and you can be sure that the end client can make a credible argument, if things go wrong, that we owed them a duty of care. If so, you will need to be properly and directly engaged by that client.

Sometimes we are asked to provide a labour only service to support another law firm. As explained, we prefer not to do this, but if there is no alternative, then it is technically possible so long as the other firm is an SRA regulated law firm authorised and insured to advise on English law. Doing so means we act as a provider of temporary staff only, and we have no liability to the other firm's client. We would do all our work on their systems and they should provide a laptop or IT access for this purpose. If you would like to work in this way, contact the Director of Operations and Compliance to discuss further.

You should bear the following points in mind when considering setting up a co-counselling arrangement.

• Client set up - you should set up the ultimate client (and not the introducing law firm) as your client.
• Engagement Letter - you should create your Engagement Letter in the usual way and then add in this Co-Counselling Rider in place of sections A and B, amended as you need. It does not matter who arranges the client's signature.
• Non law firms - we can only co-counsel with other law firms (foreign law firms are ok).
• Authority - you will need very clear authority from your client, not the law firm. If the client is happy to give a wide authority, then this can be done as a one off in the Engagement Letter.
• Practicalities - you should discuss how you are going to work with the client's and law firm's personnel as applicable. You can be accommodating, but you must always have access to such information as you need to provide a high level of service. Discuss the practicalities too. The biggest risk is a misunderstanding of who is doing what. Usually, the other firm will be co-ordinating matters, feeding in our advice to the client and we will need to tell them what to tell their client. Correspondingly, we therefore must be clear in our Engagement Letter where this is the case that we are not liable for their failure to explain things to the client, to co-ordinate the matter or to get instructions. The rider includes protective wording on this.
• SRA duties - naturally you need to do the best for the client, so long as there is no conflict, then doing our best for the client can include trying to help the introducing law firm. In the event of a conflict, our client comes first and you should seek advice from the General Counsel. A conflict can arise if you have a concern as to how the introducing firm is behaving. On conflicts generally, this is otherwise a standard engagement, so the standard rules on conflicts continue to apply. We are not operating from within the client law firm, that does change the conflict analysis, but that analysis is not relevant to a co-counselling engagement.
• Files and systems - we should use our own systems to provide our advice. If you are asked to collaborate within the systems of the other firm, then consider how we can do so, but still end up with a full copy of the file on our systems.
• Non-compete - if asked by the law firm, we can provide some templated comfort not to solicit their client, if so, you should seek that template from the General Counsel.