January 17, 2017 Practice Points

As Local Counsel: How to Be Effective and Not Commit Malpractice

Although you are not lead counsel, you are more than just a virtual messenger.

By Stewart Edelstein

When you have been requested to serve as local counsel for lead counsel not admitted in your jurisdiction, here is what you need to know to be effective while avoiding malpractice. Most important, although you are not lead counsel, you are more than just a virtual messenger. You need to check the applicable rules of practice in your jurisdiction for the starting point in analyzing applicable procedures and your responsibilities as local counsel.

Even when you are only local counsel, you have ethical duties to the client. If the applicable rules allow, in your retainer agreement, you can limit the scope of your representation if that limitation is reasonable under the circumstances and your client gives informed consent. Model Rule 1.2(c). This requires that you confer with the client regarding all matters excluded from your engagement, material risks, reasonably foreseeable consequences, and reasonably available alternatives related thereto. You should confirm your client’s informed consent in writing.

The Model Rules of Professional Conduct make no distinction between lead and local counsel, so you are bound by the same ethical rules even if you contractually limit the scope of your representation. Thus, for example, in addition to lead counsel, you must provide competent representation, act with reasonable diligence and promptness in representing the client, reasonably consult with the client about the means by which the client's objectives are to be accomplished, and keep the client reasonably informed about the status of the matter. Model Rules 1.1, 1.3, and 1.4. Furthermore, you have duties pursuant to Rule 11 of the Federal Rules of Civil Procedure and under the analogous state-court rules.

Your client doesn't want to be double-billed for the same work, and you don’t want to devote time to redundancies. How do you comply with your ethical duties while not duplicating all the efforts of lead counsel?

Establish clear demarcation of responsibilities with lead counsel. For example, agree on who will do what research, draft the complaint, respond to court notices and orders, draft pleadings, communicate with the client, and appear in court (subject to local rules). Agree on whether you will be copied on all emails and letters between lead counsel and the client.

In addition to assisting in lead counsel’s pro hac vice application, you should review the draft of the complaint and drafts of all pleadings and briefs. Give guidance about compliance with local rules and applicable law, and provide insight about such matters as possible causes of action and available relief, long-arm jurisdiction, process servers, idiosyncrasies of judges, and their unique chamber practices.

The bottom line: When serving as local counsel, comply with all applicable procedural and ethical requirements, and coordinate with lead counsel, thereby maximizing your team effort to achieve your client’s objectives cost-effectively.

Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed As a Trial Lawyer: All the Essentials, Including What You Didn’t Learn in Law School (ABA 2d ed., Jan. 2017).

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