by Robert S. Bernstein, Esq.
*This article previously appeared in the May/June 2012 issue of Commercial Law World, the official publication of the Commercial Law League of America.
Local Counsel can mean many things, just as “Of Counsel” has no single definition. Sometimes, when managing a case in a distant or foreign jurisdiction, client’s chosen counsel will engage a local lawyer to assist in making sure that the matter proceeds in accordance with local practice and rules. This is generally done with direct client involvement, permission and agreement.
Local Counsel can also mean a lawyer hired, on an ad hoc basis, to handle an appearance or hearing, to eliminate the need for the lead lawyer to travel, so-called “appearance counsel.” This is our focus, since it presents some interesting issues, such as (a) does the client have to know, (b) does the client pay for the local counsel, and (c) what professional obligation does local counsel have to the client and the Court?
I’ve seen local counsel used numerous times where the client isn’t directly aware, where the local lawyer is compensated out of the fees paid to lead counsel, and where the local counsel is appearing with limited knowledge and authority, only prepared to respond to a narrow set of issues or questions. This raises a whole host of issues. This needs to be thought of from the lead lawyer’s side, the local counsel’s perspective, as well as the Court’s point of view. It will take more than one column to cover them. This is Part One.
Start with the person in the trenches, the local. She’s agreed to show up in court on a routine matter. Perhaps it is a Motion for Default Judgment or a scheduling conference. She stands up and enters her “appearance” as “local counsel for the Plaintiff.” What is happening and what is implicated?
Substantive law generally determines when a lawyer-client relationship exists. I think we can assume that being asked by an agent of the client (lead counsel) to act on behalf of the client, as local counsel for the client is probably enough to create a lawyer-client relationship in all states. I don’t find any reference to “local counsel” in the RPC , but Rule 1.2 (c) allows that “a lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Sounds like local counsel might be able to limit the scope. Is there “informed consent?” Even though acting at the request of client’s agent (lead counsel), local counsel is responsible to comply with the applicable RPC. Local counsel is responsible to make sure there is informed consent for any reasonable limitation.
This also implicates the local rules of Court related to entry of appearance (was it an “appearance”?) and withdrawal of appearance (does she have to?). RPC 1.16 (c) requires compliance with Court directives on termination of representation.
This telegraphs the discussion about lead counsel and the Court, which we will have to deal with in the future.
1 ABA Model Rules of Professional Conduct (as adopted in each state)