Part 2: Local Counsel: Duties to the Court

by Wilson Elser

When an attorney is requested to act as “local counsel” by an out-of-state attorney in a new lawsuit, the local counsel may have additional duties that flow from Rules of Civil Procedure or Local Rules that govern lead counsel’s admission pro hac vice. For instance, Alaska R. Civ. P. 81(a)(3) states that “local counsel shall be primarily responsible to the court for the conduct of all stages of the proceedings, and their authority shall be superior to that of attorneys permitted to appear [pro hac vice].”

New Jersey’s rule 1:21-2(c)(4) requires that a firm admitted pro hac vice shall:

Have all pleadings, briefs and other papers filed with the court signed by an attorney of record authorized to practice in this State, who shall be held responsible for them and for the conduct of the cause and for the admitted attorney therein. The order [admitting counsel pro hac vice] may contain further requirements concerning the participation of New Jersey counsel as the court from time to time deems necessary.

Responsibility for the substantive content of the pleadings and “for the conduct of the cause” means much more than being a “mail drop,” and may make local counsel just as responsible for managing the case as lead counsel. See Ingemi v. Pelino & Lentz, 866 F. Supp. 156, 162 (D.N.J. 1994).

A recent Louisiana federal court discussed the substantive role of local counsel in a legal malpractice suit, although the court was deciding statute of limitations issues. In a “sound bite” tailor-made for a legal malpractice plaintiff, the federal judge stated, “the ‘professional status’ of ‘virtual messenger boy’…. does not exist for members of the bar who serve as counsel of record for a client …. all counsel had a professional duty to the client in the prior attorney-client relationship between [the client] and his former counsel.” Superior Diving v. Watts, 2011 WL 34339663 (E.D. La. Aug. 8, 2011).

Other federal court local rules are not as clear about requiring local counsel to be responsible for all that occurs in the case. Rule 2.02 regarding special admission to practice in the Middle District of Florida states:

… whenever appearing as counsel by filing any pleading or paper in any case pending in the Court, a non-residence attorney shall file… a written designation and consent-to-act on the part of some member of the Bar of this Court, resident in Florida, upon whom all notices and papers may be served and who will be responsible for the progress of the case, including the trial in default of the non-resident attorney. (Emphasis added.)

The legal malpractice plaintiff will argue that being “responsible for the progress of the case, including the trial in default of the non-resident attorney” means local counsel is responsible to the client for the entire case and to oversee all that lead counsel does. However, the objective of local rules is to govern the attorneys who practice before the court and to efficiently control the court’s docket; not control or govern the relationships between lawyers and their clients. Middle District of Florida Rule 2.02 concerns docket control and moving a case forward. This concept is consistent with the inherent powers federal courts are given “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Sahyers v. Prugh, Holliday & Karatinos, P.L. (560 F.3d 1241, 1244 (11th Cir. 2009). Rule 2.02 and similar local rules should not be construed as requiring local counsel to somehow “guarantee” the quality of lead counsel’s work.

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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