IV. Obtaining Indemnification for Co-counsel's Errors

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

IV. Obtaining Indemnification for Co-counsel's Errors

Lawyers who enter into co-counsel or local counsel relationships and appropriately structure the relationship so that each lawyer has distinct responsibilities may nonetheless be concerned that they will be held liable for the other lawyer's alleged misconduct. That concern may escalate where the lawyers share joint responsibility for the representation and may be further elevated where the co-counsel or local counsel relationship is arranged by the client rather than by the lawyers. In any event, lawyers in co-counsel and local counsel relationships may wonder whether they can request that the client indemnify them for the other lawyer's alleged malpractice. The short answer is yes.²⁵⁹ The lawyer in such a case is not attempting to limit her malpractice liability to the client, which in some jurisdictions is impermissible, but is instead seeking indemnity against claims occasioned by the alleged misconduct of another. Of course, in many jurisdictions lawyers may prospectively limit their liability even to clients as long as the client is independently represented in making the agreement.²⁶⁰ In these jurisdictions especially, requesting indemnity from a client for liability attributable to another...