Guide · How We Work · Illinois

Bringing in Trial Counsel: Why More Lawyers Doesn’t Usually Mean Higher Fees

When a serious case needs a trial team, Illinois rules require your written agreement to how the fee is divided. What to ask.

By Lincoln Square Law · 8-minute read

Clients with serious injury cases sometimes stay with a firm that is not prepared to try their case because of one worry: if my lawyer brings in trial counsel, will I pay more? In Illinois, the answer is usually no, and the reason lies in how the rules govern fee sharing between lawyers at different firms. Understanding those rules also shows why associating trial counsel is often a sign that a case is being taken seriously.

Why lawyers associate

No lawyer is the right fit for every case. A firm that builds and negotiates claims well may not be the firm a client wants in front of a jury in a complex, high-value trial, and a firm that tries cases every month may not be the one that first met the client after the crash. When a case needs more trial capacity, more resources to fund experts, or specific experience with a type of injury or defendant, the responsible move is to bring in a lawyer or firm that has it. This is called association, or working with co-counsel. It is an established practice, and it gives the client a team assembled for what the case actually requires.

The rule that governs the fee

Illinois Rule of Professional Conduct 1.5(f) sets the conditions for dividing a fee between lawyers who are not in the same firm. The division is permitted only if three conditions are met:

• Proportion or responsibility. The division is in proportion to the services each lawyer performs, or, if the primary service performed by one lawyer is the referral of the client to another lawyer, each lawyer assumes joint financial responsibility for the representation.
• Client agreement in writing. The client agrees to the arrangement, including the share each lawyer will receive, and the agreement is confirmed in writing.
• Reasonable total. The total fee is reasonable.

Separately, a contingent fee agreement must be in a writing signed by the client that states how the fee is determined, including the percentage and how expenses are handled (Ill. R. Prof’l Conduct 1.5(d)(2)).

What this means for your fee

In a typical contingency case, the associated firms divide the fee the client already agreed to. The client’s percentage stays the same, and the lawyers decide between themselves, with the client’s written consent, how the fee is shared. The rule does not by itself prohibit a higher total fee, but it requires that the total be reasonable and that the client agree in writing to the arrangement, so any change to the client’s fee would have to be disclosed and agreed to. A client should expect to see a written association or fee-division agreement that states the total fee, each firm’s share, and how case expenses will be paid and reimbursed.

Questions a client should ask

• Why is co-counsel being added? Ask what the associated lawyer or firm brings: trial experience, a particular type of case, resources, or all three.
• Who will do what? Ask which lawyer will take depositions, argue motions, and try the case, and who will be your day-to-day contact.
• Does my percentage change? Ask for the total fee in writing, and confirm how it compares with your original agreement.
• How are expenses handled? Ask who advances case expenses, such as expert fees, and how they are repaid from any recovery.
• Is every firm insured and responsible for my case? Ask whether each firm carries professional liability coverage and, for a referral, whether the referring lawyer is assuming joint financial responsibility.
• What happens if I disagree? You are the client. The arrangement requires your agreement, and you can ask questions or decline before signing.

Communication and the client’s decisions

Adding lawyers does not change who decides the case. The client decides whether to settle, and lawyers must keep the client reasonably informed and explain matters to the extent reasonably necessary for the client to make informed decisions (Ill. R. Prof’l Conduct 1.2(a) and 1.4). With more than one firm involved, it helps to agree at the start on a single point of contact and a schedule for updates, so that the client hears one consistent account of the case.

Why associating trial counsel matters for value

Insurers value cases partly on the realistic chance that a case will reach a jury, and on who will try it. A file handled by a lawyer who can and will try the case reads differently from one that the defense believes will settle for whatever is offered. Associating trial counsel can therefore change the value of a case well before trial, because it changes the defense’s assessment of the risk of going forward.

Association also affects the resources available. Serious injury cases often require life-care planners, economists, medical specialists, and reconstruction experts. Associated firms can share the work and the cost of preparing those experts, which can make the difference between a case that is ready for trial and one that must be settled.

Why this can be a sign of good representation

A lawyer who recommends bringing in trial counsel when a case calls for it is putting the client’s result ahead of keeping the entire fee. The more serious concern is a firm that settles cases below their value rather than acknowledge that it is not prepared to try them. A lawyer who says “this case deserves a trial team, and here is who I would bring in” is making a recommendation that the rules require to be explained to you, in writing, before it takes effect.

Referral arrangements

Not every association involves two firms doing equal work. Sometimes the first lawyer’s main contribution is recognizing that the case needs a different firm and referring it. Rule 1.5(f) allows a fee division in that situation only if each lawyer assumes joint financial responsibility for the representation, meaning the referring lawyer stands behind the representation financially as if the lawyers were in the same firm. The client must still agree in writing to the arrangement and each lawyer’s share. A referral is not a sale of the case. The client remains free to ask what the referring lawyer will continue to do, and whether that lawyer will remain involved at all.

If you want to change lawyers instead

A client may discharge a lawyer at any time, with or without cause. Under Illinois law, a lawyer discharged from a contingency case is generally limited to a reasonable fee for the services actually performed, measured by quantum meruit, rather than the full contingent fee (Rhoades v. Norfolk & Western Ry. Co., 78 Ill. 2d 217 (1979)). That fee is ordinarily paid from any eventual recovery and resolved between the lawyers. A client who is unsure whether current counsel is prepared to try the case can raise the question directly, ask about association, or seek another opinion before a trial date forces the decision.

Timing

Association works best early. Trial counsel who join a case at the beginning can shape the investigation, preserve evidence, and choose experts. Those who join on the eve of trial inherit whatever record exists. If a case involves catastrophic injury, a death, a government defendant, or complex liability, the question of trial counsel should be raised at the start.

Ask why, who will do what, and for the fee terms in writing

Associating trial counsel lets a serious case get the trial experience and resources it needs. In Illinois, the arrangement requires the client’s written agreement to the division of the fee, including each lawyer’s share, and a reasonable total fee. In the usual contingency case, the firms divide the fee the client already agreed to. If a firm proposes bringing in trial counsel, ask why, ask who will do what, and ask to see the fee and expense terms in writing.