July 18, 2012 Articles

Duties of Local Counsel: More Expansive Than You Think?

Don't be held responsible for the mistakes of national counsel.

By Stephen L. Miles

Most attorneys hope to receive a telephone call on behalf of a large corporation from its national outside counsel, who happens to be a law school classmate or a former colleague or cocounsel, asking the attorney to serve as local counsel in a recently filed lawsuit. Such a call may be very welcome, as it could offer the prospect of a new case and an ongoing new client relationship, not to mention the opportunity to reconnect with a former classmate or compatriot. Local counsel assignments, however, can also bring with them peculiar risks of legal malpractice about which the local attorney—and his or her law firm—should be reminded. Chief among them is the risk that, following an unanticipated poor outcome, the client seeks to hold responsible the local counsel for mistakes made by national counsel, when local counsel until then thought his or her role did not include primary responsibility for the litigation and instead was limited to that of “mailbox” local counsel. Unless the local counsel’s scope of representation is reasonably limited by the client with informed consent, local counsel’s expectation alone may not be enough to avoid liability in the event of malpractice. The American Bar Association Model Rules, state rules of professional conduct, and a series of cases, both new and old, serve as a reminder of the duties of local counsel, and the potential malpractice risks of such assignments.”

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