Part 1: Local Counsel: Opportunity or Pitfall?

by Wilson Elser
Contact

Occasionally, attorneys may get a call from an out-of-state attorney requesting them to serve as “local counsel” in a new lawsuit in their home town. Lead counsel explains, “Yeah, I just need you to file some papers, let me use your office for depositions once in a while, and tell me what the judge is like. I might even need you to attend a discovery hearing if need be.”

It sounds like a tempting opportunity to bring in new work and maybe get some easy billable time without a substantial increase in workload. But when one accepts the responsibility of being “local counsel,” traps await that may result in professional liabilities in surprising and unexpected ways.

The first problem may be that “local counsel” might have little, if any, meaningful information about either the client or the client’s claim. Typically, local counsel is asked to represent a client that they have never represented before. Often, the lawyer has only limited information about the experience, skill or competency of the out-of-state lawyer or law firm seeking local counsel. To save expense and avoid duplication of effort, local counsel may be told that they should accomplish only those tasks specifically assigned or delegated to them. In some cases, local counsel will be asked to serve as little more than a “mail-drop,” with all substantive work performed by out-of-state counsel.

Local counsel may have limited client access. The nonresident attorney may insist on handling all communications with the client. As a result, local counsel may be entirely dependent on the out-of-state counsel for accurate information concerning the basic facts of the case as well as the client’s goals and objectives.

Attorneys acting as local counsel might assume that their exposure to professional liability claims is limited to the tasks they actually perform, and that they will not be held responsible for mistakes made by out-of-state counsel. However, that may not always be the case. Pitfalls await those lawyers acting as “local counsel” unless they recognize the risks and find ways to minimize or avoid them.

Scope of Representation
As in many lawyer malpractice claims, how the attorney defines and memorializes the scope of representation is key. Unfortunately, some local counsel fail to make it clear to their clients that they have only a limited role. They simply assume that the lead attorney and the client understand that local counsel’s role is limited. As a result, local counsel may fail to have a written retention agreement that spells out the limited scope of representation. The rules of professional conduct of most state bars allow a lawyer and client to agree to limit the objectives or scope of the representation if the limitation is reasonable under the circumstances, but usually the client must give written informed consent. Absent a written agreement concerning local counsel’s limited role, the client may contend that local counsel was responsible for handling the entire case, including matters that were the responsibility of the referring attorney, which local counsel never intended to be within their scope of representation.

Under Florida law, courts should reject “attempts by former clients to retroactively expand the scope of the attorney’s representation.” Law Office of David J. Stern, P.A. v. Security National Service Corp., 969 So.2d 962, 966 (Fla. 2007) quoting Security National Servicing Corp. v. Law Office of David J. Stern, P.A., 916 So. 2d 934 (4th DCA 2005). Other states follow this basic rule. By getting the scope of representation clearly defined in writing at the outset, local counsel can avoid being dragged into a legal malpractice lawsuit against lead counsel who commits malpractice on an aspect of the case that is outside the well-defined scope of local counsel’s representation.

Is lead counsel’s agreement to limit the scope of local counsel’s representation sufficient to bind the client? Although one could argue that agency principles would bind the client, if lead counsel is unwilling to help local counsel get written informed consent to a limitation of local counsel’s scope of duties in writing from the mutual client, that should raise red flags and make local counsel reconsider entering into the representation at all.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser
Contact
more
less

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.
Feedback? Tell us what you think of the new jdsupra.com!