Ethics and Professionalism: Sorry, Local Counsel, You Are COUNSEL!”

by Robert S. Bernstein, Esq.

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

We’ve looked at the local counsel issue from the Local and Lead Counsel perspective in the first two installments. To complete the cycle, let’s put ourselves in the Judge’s chair.

In run-of-the-mill cases, the Judge simply wants counsel to move the case along and to be reasonably civil and responsive to the Court’s directives and requests. The Court would like counsel to be prepared for hearings/arguments and to present in an organized, cogent fashion. Unless the judge has a particular dislike for a lawyer, the Court generally doesn’t care who the lawyer is that is representing any particular party. It is only when something goes wrong does the Judge start to really pay attention to who is there for the party.

Situations in which the Curt may become concerned include:
• inadequate preparation or knowledge on the part of the lawyer
• failure to act timely
• disrespect or actual contempt

In these cases, the Court wants to be able to influence behavior of the client or the lawyer. Since the lawyer (often Local) is the one who is standing in front of the Judge during these times (or is the one the Sheriff or Marshal can readily bring in!) it is the Local that the Judge is going to try to influence. This is where the “appearance” and “withdrawal” issues come in.

At its basic level, entering an appearance means going on the record that you are there for a party. Entering an appearance has an impact on future notices, on the ability to speak for and bind your party, and on whether you can just walk away.

Most courts have rules about a written appearance, mostly for administration of the case, formal notices, etc. Most judges also start hearings by asking for counsel at table to “enter your appearance.’ While that seems innocuous enough, it would qualify as an “entry of appearance” for the purposes of the Court having power of the lawyer in that case. Court and ethics rules govern the process for a lawyer withdrawing from representing a client before a tribunal.

All of this leads to the clear conclusion that a “local” counsel is still “counsel” and once she says “Lawyer Jones, counsel for Plaintiff” she can be stuck. The Court has her “appearance” in the case and can refuse to let her out, can punish her for failure to know the case, for failure to move the case timely, for discovery failures (note that lawyers have increasing responsibilities in discovery under state and federal rules), and for perceived disrespect of the Court and the process.

Judges understand the economics of practice and generally permit the “I’m only Local Counsel” plea. But when the Judge is angry or trying to move a party one direction or another, that judge may not be so lenient.

As we leave this topic, do not forget that as Lead, you are also responsible for what your Local does. If she is a loose canon or does something wrong that injures the client, there is little doubt that you, as Lead (and the one who engaged her – generally without telling the client) will have liability, both civilly and professionally.

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