Who Selects Local Counsel?
The most important consideration for a US-based attorney to gain familiarity in a foreign jurisdiction is the selection of local counsel. In some instances, the client selects local counsel without receiving input from their US-based attorneys, and in other instances, the US-based attorneys select the local counsel for the client. Determining who will select foreign counsel is multifaceted and depends on multiple factors, including the client (Is the client an individual or an entity? If an entity, does the entity have in-house counsel?) and the matter (Does the matter involve litigation, a transaction, or an internal or governmental investigation?).
In selecting its own foreign counsel, the client may rely on prior experience with counsel based in the jurisdiction, preferring its tried-and-true local counsel. In other cases, the client may use a company that offers services to aid in selecting local counsel. It is not uncommon for a client to engage foreign counsel before engaging US counsel on a matter. On the other hand, as with local counsel determinations within the United States, clients often ask their US-based attorneys for advice or recommendations in selecting local counsel in a foreign jurisdiction.
Different Roles in Working with Local Counsel
Another consideration that US-licensed lawyers should consider is knowing their role in relation to the local counsel. In working with local counsel, and depending on the rules of the foreign jurisdiction, a US-trained attorney may be able to function as co-counsel, working in tandem with local counsel or in the capacity of a consulting lawyer where the US-trained attorney’s role is purely advisory. In instances where international litigation is involved, there are some jurisdictions where the barristers (common law attorneys who specialize in courtroom advocacy and litigation) do not work with the client and only work with the attorneys who hire them.
Trust the Experience, Expertise, and Knowledge of Local Counsel
Local counsel in foreign jurisdictions are hired to provide their expertise on their jurisdiction’s local rules, regulations, and common practices, and their input and insight should be respected. Thus, you should trust the advice and counsel of local counsel in the foreign jurisdiction. As with any matter of importance, however, request sufficient information to allow you to verify the information they provide. Given varying laws and requirements in international jurisdictions, local counsel may approach a situation or draft something that appears awkward or unclear to you as a US-trained attorney.
For instance, in drafting a document, there may be a provision that local counsel insists on including, but the provision may be something that a US-trained attorney would normally not include. Lean into the expertise of local counsel in those situations because the matter involves the laws in which they were trained, and they have the knowledge, experience, and expertise to give competent legal advice. But it is OK to inquire into the source of the practices, particularly if the requirement is different or unusual to you. Again, trust, but verify: their judgment should be respected because they were hired for a reason.
In addition, trust and understand the customs involved with the work ethic of the jurisdiction of the local counsel. For example, in some foreign jurisdictions, it may be customary to respond to an inquiry in a few business days instead of immediately. This response time may appear unnecessarily long to a US-based lawyer, but the US attorney should consider this factor in working with local counsel.
Ethical Obligations
On a final note, US lawyers should always follow the respective ethical rules, both domestic and foreign, in any client matter—including client matters that are abroad and involve local counsel. In addition to US ethical rules, there may be foreign ethical rules in the jurisdiction of local counsel. Local counsel will be a good resource for guidance on the respective ethical rules of their jurisdiction.
