Ideas from the Front
Working With—or as—Local Counsel Requires Balancing Power, Expectations
Posted May 1, 2004 3:15 PM CST
By John Gibeaut
As clients become more mobile, bar regulators are looking at new rules to make it easier for lawyers to cross state lines to meet their clients’ needs. But new rules just can’t cover every aspect of lawyering in every situation. So the choice of local counsel likely will remain critical.
There’s always pro hac vice admission, yet all but about a half-dozen states require association with a local lawyer regardless. And while streamlined admission for out-of-towners does give the traveling lawyer a ticket to the show, the best seats likely will go to those who master local rules and customs.
“On the theory that a good lawyer knows the law and a great lawyer knows the judge, local counsel makes a whole lot of sense,” says Mary L.C. Daniel, who does collections work in Winchester, Va. “Besides knowing the judges, I have to know my local sheriff’s department and my local banks.”
Daniel also is licensed in nearby West Virginia, where pro hac vice costs $150 a case and is limited to three cases per lifetime. She estimates that about 20 percent of her practice involves helping creditors’ lawyers execute on judgments against deadbeats who buy goods or services in one state but live in the other. For the lawyers who hire Daniel, relying on local counsel is the only practical way to handle such a high-volume practice.
Daniel finds life as local counsel is easier if she just deals with the lawyer or firm who hires her. “The benefit of doing the local counsel thing is sometimes you don’t have to deal with the client and sometimes you don’t deal with local [opposing] counsel,” Daniel says.
Responsibilities of local counsel vary. The lawyer may act as a mail drop who merely signs pleadings, as a lifesaver who can attend to urgent matters, or as a full-fledged member of the legal team. No matter what the division of labor, lawyers at both ends must define their roles precisely from the get-go.
Even so, local counsel who limit the scope of their duties on paper still may by liable for lead counsel’s malpractice or ethical breaches if a court or disciplinary agency takes an expansive view of the lawyers’ duties to the client.
ABA Model Rule of Professional Conduct 5.5, amended in 2002 to govern pro hac vice admission, requires local counsel to both participate actively in and share responsibility for the representation. That can include local counsel’s informing the client of differences over advice given by the out-of-state lawyer.
“This can be a very serious issue for local counsel,” says Uniondale, N.Y., litigator David J. Abeshouse. “You don’t want to just cheerfully become local counsel for anyone at any time.” So references are essential, as is finding someone in a comparable practice area.
“I always make sure I know who the other attorney is, either through reputation or through specific recommendation,” Daniel says. “And I always find out how they got my name. That matters. The best ones come from attorneys I’ve worked with. The worst ones come from family members.”
BALANCING CONTROL, COST
As representations become more complex, so can the relationships between the lawyers. Particularly troublesome issues of control can arise in high-stakes litigation with the possibility of sizable contingency fees for plaintiffs counsel and cost-consciousness on the defense side.
“In general, you want your local counsel to be a procedural person,” says Nicholas H. Cobbs of Washington, D.C., whose solo practice includes aviation, personal injury and product liability defense. “What you don’t want your local counsel to do is rewrite your extensive motion for summary judgment, add a few cites, then send you a huge bill. They often view this as sort of Christmastime.”
Besides hiring local counsel, Cobbs regularly serves in the same capacity for out-of-state firms. Well-defined duties and access to the client are crucial to him, especially when it comes to getting paid.
“I think it’s important to have a clear understanding of who’s responsible and, if possible, to have a direct pipeline to the client,” Cobbs says. “A lot of law firms don’t like that. They want to keep you away from the client. They want to maintain control.”
"Hometown Advantage," May, 2004, page 28, mistakenly stated that West Virginia limits pro hac vice admissions to three cases per lifetime. Under Rule 8 of the West Virginia Rules for Admission to the Practice of Law, "If the applicant's appearances within the state...within the past 24 months are numerous or frequent...the court...shall deny such person the continuing privilege of appearance." The Journal regrets the error.