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May 2017

Using local counsel when lawyering outside of home turf is a must

Although some people think that the requirement to hire local counsel is little more than a move to protect turf, Timothy Miltenberger, a lawyer with Coan, Lewendon, Gulliver & Miltenberger LLP in New Haven, Conn., thinks engaging local counsel is well worth the time and expense.

“A local attorney is a true benefit to the court, the visiting lawyer and the client,” he writes in “The Indispensable Local Counsel” in the Winter 2017 issue of TYL, the magazine of the Young Lawyers Division.

In some instances, hiring local counsel is a no-brainer. Miltenberger uses as an example a client wanting you to represent it in a matter in Vilnius, Lithuania. In addition to the language barrier, there’s also the lack of knowledge about the country’s civil or criminal law, legal structure and court rules and customs.

“So you would correctly conclude that were you to show up in a Lithuanian court you would be thrown out faster than you walked into it,” he writes.

But a surprising number of those same issues pop up when you consider representing a client in another state. Even if you’re a New England lawyer and think you can easily represent a client in New Jersey, “you will need a guide,” Miltenberger asserts.

The benefits of finding the right local counsel are many, he writes. “A good local counsel will know more than the written and the unwritten rules – she will know the people,” including the judges, and maybe even the law clerk or clerk of the court, and can navigate the local legal norms and procedures. “Local counsel can and should mentor you,” he continues.

Miltenberger makes the case that “lawyering is all about people” and understanding the various relationships between them.

He relays the story of representing a client out of state in bankruptcy court. While having lunch with local counsel, he learned that a paralegal tangentially involved in the case had been represented by the bankruptcy judge and that the judge was good friends with the paralegal’s wife. He requested and received a motion for the judge to recuse herself, and realized that local counsel’s knowledge of this information was crucial to how events played out.

Pro hac vice requirements typically require that a visiting lawyer submit an affidavit that she is admitted to the bar somewhere and is in good standing, and that she has read the local rules. Although reading the local rules is time-consuming and costs the client money, resist the temptation to skip it, Miltenberger urges. “What happens when the court rejects your motion for summary judgment because you didn’t follow a local rule?” Coming face-to-face with a local practice you weren’t aware of could decimate your case from the beginning.

“The language, cultural and legal differences may be subtle, but they exist,” Miltenberger writes of practicing outside your geographic area. “And because they are more subtle, they may go undetected without a local guide to steer you clear of danger.

“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,” he concludes.

The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.
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