Limitations on Local Counsel?
Attorneys often utilize local counsel to assist in a venue they are not licensed. The role of the local counsel will vary from case to case. Generally speaking, local counsel have a more limited role in the litigation. However, according to a recent NY ethics opinion, a limited role does not necessarily mean limited responsibilities or risks.
Attorneys who agree to act as local counsel may be subjected to certain unanticipated risks or obligations despite their limited role in the litigation. According to the NY Ethic’s Committee, a local counsel designation does not relieve attorneys of their ethical obligations to their client. For example, the opinion cites to a recent case out of the District of Columbia where local counsel was disciplined for failing to ensure that lead counsel timely served the complaint in a personal injury action. Local counsel was in fact the only counsel of record for the plaintiff in that lawsuit that was licensed to practice in the District. As that case makes clear, attorneys who are asked to serve in a limited capacity can still be held responsible when case management deadlines are missed or important developments are not communicated to the client.
Local counsel can, however, circumscribe their role in the litigation by entering into an agreement with the client to limit the scope of representation. Under Rule 1.2 of Professional Conduct an attorney may limit the scope of his representation, provided that the client gives “informed consent” and that the limitation is “reasonable under the circumstances.”
According to the opinion there are many reasons why local counsel should consider limiting the scope of representation, which include “managing expectations, avoiding misunderstandings about the scope of the lawyer’s responsibilities, minimizing disputes over the allocation of responsibility between lead counsel and local counsel, and managing costs.”
Local counsel must keep in mind though that “an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation.” For example the committee notes, where local counsel is asked to sign his name to a complaint prepared by lead counsel, even though he does not believe the causes of action are supported by the factual allegations, a limitation on the scope of representation would not relieve him of his ethical duty not to file such a frivolous claim.
The committee also states that even where the agreement delegates the task of communicating developments in the lawsuit to lead counsel, it does not completely absolve local counsel from the duty to ensure the client receives the information. Specifically, “if local counsel knows or has reason to know that lead counsel is not adequately updating the client concerning the case, she must take steps to remedy the omission, even if it means bypassing lead counsel and communicating directly with the client.”
Additionally, certain ethical obligations also cannot be eliminated by a contract to limit the scope of representation. The committee notes that a lawyer “may not agree to circumvent rules concerning candor to the court or third parties.” Local counsel are often required to attend court conferences and hearings, where the local rules and/or judges require the attorneys who appear to have sufficient knowledge of the case, regardless of the retainer agreement. As such, despite the limited engagement of local counsel he or she still has an ethical duty to present prepared for the hearing and with the requisite knowledge of the case.
The bottom line is that attorneys who act as local counsel are subject to the same ethical rules as all lawyers. To avoid potential confusion, conflict and to manage risk, local counsel should consider limiting the scope of the representation, where appropriate. Keep in mind that it is the local counsel’s obligation to adequately communicate the limitations to the client and ensure that he has obtained the client’s informed consent. Also, limitations must always be reasonable under the circumstances and cannot act to relieve local counsel of his ethical obligations to the client.