Part 1: Local Counsel: Opportunity or Pitfall?

by Wilson Elser

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.

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