May 15, 2017

The Indispensable Local Counsel

Timothy Miltenberger

Your client wants you to represent it in a new case pending in Vilnius. The client is important to the firm, and you need to handle the case. Moreover, you’ve been handed the opportunity of free international travel (in business class), the occasional European junket, cultural exchange, and substantial fees. But then reality sets in.

You don’t speak Russian, or Polish, or whatever language they speak in Vilnius (correct answer: Lithuanian). You don’t know whether Lithuania uses common law, civil law, or something else. You don’t know any Lithuanian judges, lawyers, or the location of the courthouse. There are real, practical problems to practicing so far from home.

There are also legal problems. Like most countries, Lithuania has licensing standards for its attorneys. They are required to understand the law of Lithuania, its court rules—both written and unwritten—and its customs. So you correctly conclude that were you to show up in a Lithuanian court you would be thrown out faster than you walked into it. A Central European, former communist satellite version of My Cousin Vinny in which the court does not wait until the case is over to check your credentials.

While the problems with practicing in a different state of the Union are less severe than practicing abroad, the pros and cons of handling cases away from home are the same. In New England and the Mid-Atlantic, for example, the geographical boundaries of a license to practice law can be very limited and you frequently need to cross a border. And while you might think that they speak the same language in New Jersey, you might be wrong about that. You will need a guide.

Local Counsel as Your Local Guide

Increasingly, the need for local counsel has come under fire. The criticism is that the requirement of hiring local counsel is nothing more than the provincialism of small markets trying to protect their bars from invasion from population centers. The requirement—and concomitant expense—of hiring local counsel keeps thousands of New York City lawyers out of the courts in Stamford, Connecticut, or Newark, New Jersey. The requirement of local counsel does, in fact, protect the local attorneys. Still, the criticism is unfounded. A local attorney is a true benefit to the court, the visiting lawyer, and the client.

Courts are complex and quirky institutions. Most, if not all courts, have unwritten rules related to filing requirements, service requirements, and appearing in court. In bankruptcy court, these problems can be nuanced and significant. In some jurisdictions, the failure to put “Attention: Office or Managing Member” will invalidate your certificate of service and your motion will be denied on that basis (hopefully, this will happen on the docket and not by the judge in open court while you’re standing before fifty members of the local bar). In other jurisdictions, shortly before the hearing you have to provide the judge with a statement of the issues that need to be resolved at the hearing, the issues that have already been resolved by the parties, and copies of the pleadings the judge will need to consider at oral argument. These rules are of great benefit to the judge. Imagine how the judge feels when a lawyer from out of town appears before her without following these rules.

Recently, I saw a visiting lawyer docket a letter requesting additional time to file an amended pleading. The court responded with a snarky order denying the request because it was filed by letter, not a formal motion. (Practice tip: Avoid snarky orders from federal judges!) The court denied the request without prejudice and the next day a motion was filed. The visiting lawyer should have consulted with her local counsel—or found a better one.

You need a good pathfinder when you travel away from home. A good local counsel will know more than the written and the unwritten rules—she will know the people. Some judges don’t care if you stand when you address the court. Some judges get annoyed if you address the court while seated; others will yell at you. Your local counsel should be able to tell you the type of judge that is presiding over the case. Some chambers will assist lawyers in getting hearing dates, rescheduling matters, and dealing with matters of process. Others won’t. Local counsel should be able to tell you how chambers will behave. Local counsel might know the judge’s law clerk, or the clerk of the court. Local counsel can and should mentor you.

Ultimately, lawyering is about people. It is about communicating with them and understanding the relationships—legal and otherwise—between them. A few years ago I traveled out of state to appear in bankruptcy court. At lunch with local counsel I asked him about a name—call him Mr. X—I had seen repeatedly on the debtor’s attorney’s recent fee application.

Local counsel explained to me that Mr. X was a paralegal at a firm that I had been litigating with in other jurisdictions. Local counsel explained to me that Mr. X was a disbarred lawyer who had gone to jail for stealing client funds. Local counsel explained to me that the disbarment and the criminal conviction had caused Mr. X to suffer significant financial setbacks. Local counsel told me that the bankruptcy judge before whom I was about to appear had represented Mr. X during his financial difficulties and was very close friends with Mr. X’s wife.

Sixty minutes before the hearing, neither I nor the judge understood or appreciated Mr. X’s role in the case. The hearing began with a request for the judge to recuse herself, which she ultimately did. Without local counsel, I might have been litigating in an unfriendly court before a biased judge. Local counsel’s knowledge of who knows who turned out to be critical. Even though the case was pending in a federal court and I knew the law and all the rules, I didn’t know anything about what was happening until my guide told me.

Increased Cultural Differences Increase the Need for Local Counsel

While we might like to pretend otherwise, communication is more difficult when the local bar and bench don’t look like you or sound like you. While this can be true when practicing in other regions of the United States, it’s more easily detected and understood when practicing outside of the United States. The differences in the law, the rules, the custom, and language make practicing abroad daunting and most often impossible.

I represent a co-plaintiff (of sorts) with an Irish client in litigation in the United States and Ireland. While Irish counsel and I speak the same language, I am frequently surprised by how difficult it can be to communicate. At times, I can’t cut through the brogue. We struggle to avoid colloquialisms that the other party cannot understand. Irish co-counsel cannot understand what I mean when I say, “It’s 4th and 1.” I invariably ask for clarification when presented with a hurling reference. Irish counsel frequently presents me with the sports sheet—and I still don’t know what that is. Yet these cultural differences pale in comparison to the legal differences between the two jurisdictions.

Though both jurisdictions share the same fundamental beliefs—rule of law, justice, equity—the processes that they use in pursuit of these beliefs vary significantly and remarkably. The court system is structured differently; the bar is divided into barristers and solicitors; the discovery process is fundamentally different; and the method of presenting evidence differs. (And if you lose, you pay!) No responsible US lawyer would consider practicing in Ireland, or Lithuania, or anywhere else in the world without a strong local legal team.

The Many Good Reasons for Pro Hac Vice Requirements

Pro hac vice requirements recognize that lawyers disconnected from the local court system need a pilot familiar with the local waters to be effective. There is no legitimate controversy about whether licensing local attorneys is an appropriate state function, and the same holds true for visiting counsel. State and federal courts need to know that the attorneys who appear in court know the law and the process. Without such safeguards, clients can get hurt. Thus, the most basic requirement of most pro hac vice rules is that the visiting lawyer submit an affidavit that she’s admitted somewhere in the United States and that she’s in good standing in the places where she’s admitted. Step one is easy: the visiting lawyer has to be a lawyer.

A second typical requirement to be admitted pro hac vice is a statement to the court that you’ve read the local rules. Courts need to know that you can follow the local rules. Many visiting lawyers sign off on an affidavit that they’ve read the local rules. A smaller number have actually done it! Reading the local rules is time consuming and it costs the client fees that may seem unnecessary. But what happens when the court rejects your motion for summary judgment because you didn’t follow a local rule? For instance, the District of Connecticut requires a statement of undisputed facts. Unfamiliarity with the local practices could destroy your case before it has even begun.

Good practice in another state or foreign jurisdiction requires a strong local legal team. The language, cultural, and legal differences may be subtle, but they exist. And because they are more subtle, they may go undetected without a local guide to steer you clear of danger. Local counsel should not be considered a burden or an unnecessary expense. Local counsel may be all that stands between you and an embarrassing rejected certificate of service, a snarky order about an improper letter, or a trial against a party affiliated with the husband of the judge’s best friend.

Timothy Miltenberger

Timothy Miltenberger is a member of Coan, Lewendon, Gulliver & Miltenberger, LLC in New Haven, Connecticut.