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July 22, 2019 Practice Points

Crossing Boundaries: Should You Take that Out-of-State Case?

Taking cases in foreign jurisdictions and serving as local counsel expand your opportunities, but it is important to analyze the pros and cons of each engagement.

By Kelsey Heino

Given the onus of taking multiple bar exams or dealing with the paperwork for admission by waiver, many attorneys are only licensed in one or two states. This can limit their pipeline, and the clients they represent may very well have office locations or interests in several jurisdictions. When the opportunity arises to represent your client in a state for which you are not licensed, what issues arise with taking that case? Similarly, if your out-of-state contact reaches out and asks you to be local counsel for him, should you do it? Here are a few things to keep in mind when you’re considering crossing borders.

Pro Hac Vice

If you’re looking at trying a case in an unfamiliar jurisdiction, the biggest consideration should be whether you feel you can competently represent the client under that state’s laws. In practice areas with very state-specific nuances, such as family law or workers’ compensation, it may be best to leave it to the more versed attorneys in that state. On the other hand, general negligence cases or contract disputes may lend themselves to out-of-state counsel, assuming you take the time to familiarize yourself with the controlling precedent on your issue.

Who’s going to be deciding your case? Does the judge have an implicit bias against out-of-towners? Is the jury going to take issue with or love your southern drawl? For example, on a case my firm tried, a Louisiana judge was a stickler for formality—don’t let calling your witness “Bob” instead of “Mr. Smith” ruin your rapport with the decision maker! Be sure to have local counsel who can guide you through these latent landmines.

How frequently are you going to need to practice in this jurisdiction? In some states, the number of times an attorney can be admitted pro hac vice (PHV) on a case is pretty limited. Approximately 1/3 of the states in the United States have some limitation on the frequency of PHV appearances. If your client regularly does business in the state (and consequently may regularly be sued there), it may be worth considering getting licensed so that there are no concerns about your PHV application getting denied on any particular case.

Local Counsel

Serving as local counsel can be as simple as reviewing pleadings before filing or as involved as being lead on a case. The first step in deciding whether to accept a local counsel role should be getting clarification from the lead on what your scope will be. (The second is getting that arrangement in writing!) If basically all they need is your bar number and some local insight, it should be a pretty low-stress commitment, bearing in mind, of course, your state’s requirements for local counsel. The key concern with this sort of very limited involvement is being comfortable with out-of-state counsel’s competence and professionalism. Putting your stamp of approval on a filing is more than just a formality, and if your lead counsel steps out of line in your jurisdiction, you could be putting your own reputation at risk. It’s generally advisable to agree to be local counsel only if you are familiar with the out-of-state attorney—being a bar number for hire is not likely to end well for you.

You must also keep in mind that the out-of-state client is still your client—out of sight is NOT out of mind in this instance. Many an attorney has gotten in hot water for breaching ethical obligations to the client in a local counsel situation. You cannot contract your way out of your ethical duty to that individual or company, even though your scope may be limited.

Taking cases in foreign jurisdictions and serving as local counsel both expand your opportunities. However, it is important to analyze the pros and cons of each engagement to ensure you are reaping all the possible benefits without falling victim to the potential pitfalls.

Kelsey Heino is an employment and complex litigation attorney with Goosmann Law Firm in its Sioux City, Iowa, office.

Copyright © 2019, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).