Ethics and Professionalism: But, She Was Only Supposed to be “Local Counsel!”

by Robert S. Bernstein, Esq.

*This article previously appeared in the July/August 2012 issue of Commercial Law World, the official publication of the Commercial Law League of America.

Last time we raised questions about whether the client has to give informed consent, whether the local is really entering an appearance and whether local has to “withdraw” when no longer participating.

We turn now to the lead lawyer (“Lead”). Let’s imagine the lawyer, in a faraway town in the same state, who has the case on a flat fee or contingent fee and doesn’t want to make the four-hour drive to attend the court date. He looks around for a lawyer out there who is willing to take a few bucks to make appearances, while Lead does most of the substantive work by mail or phone. Perhaps the deal is a flat $100 appearance fee.

Lead files the suit, arranges service and, if an answer is filed, is faced with having to attend an initial scheduling conference. It could also be a state that requires an in-person presentation for a default judgment. Either way, he needs someone to stand up and say “Lawyer Jones, counsel for the Plaintiff.” When the Lead engages that local, he probably doesn’t discuss it with the client. He doesn’t discuss the fees or the professional liability risks. He and local probably don’t even address conflicts of interest because, after all, it is only an appearance. But how can that pass ethical muster?

If Lead got the client’s blanket permission to engage local counsel, maybe it would be informed consent. But can there ever be informed consent without the client knowing the identity of the local? What if local is also “appearance counsel” for another Plaintiff against the same defendant? Wouldn’t that be a concurrent client conflict that has to be waived (after informed consent)? To what extent is Lead able to give the client’s “informed consent” and does it require getting permission from client in advance, and getting it with informed consent?

When Lead doesn’t want to pay local for the 2nd, 3rd or 4th appearance and Lead doesn’t attend, who is on the hot seat? Just Lead? Probably not. Local is the lawyer that the Court can reach out and touch. When local has no contact with the client, an uncooperative Lead and a pressing Judge, can she walk away because she is “just local counsel?” I don’t think so.

Local counsel may think she can ignore these issues because she thinks she has no professional responsibility in the matter, not having a relationship with the “client” and only with the lead lawyer. Lead may gloss over some of the ethics issues for expediency. Both do so at their peril. As said in the last column, the Rules do apply here. But, heck, most of the time no one gets caught, right?

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