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The Eighth Circuit affirmed, reasoning that that the negligent
conduct about which Macawber complained was
beyond the scope of its attorney-client relationship with
Abdo & Abdo. Macawber’s retention letter to Hedges stated
that the company wished to “confirm our appointment of
your firm as our local counsel in support of litigating attorneys,
Robson & Miller,” in the Red Rock case. Id. at 256.
Macawber’s CEO testified that he relied on Robson &
Miller to handle the Red Rock litigation and to direct local
counsel’s activities. Robson & Miller lawyers testified that
Abdo & Abdo’s role was limited and that the firm did
everything asked of it. The court concluded that the attorney-client
relationship between Macawber and Abdo &
Abdo “was limited in scope and did not encompass a duty
to monitor the discovery process and ensure responses to
the requests for admissions.” Id.. at 257.
Macawber countered by pointing to a District of
Minnesota local rule requiring non-resident lawyers to
associate with a member of the Minnesota bar before
appearing in any action or proceedings before the court,
and stating that local counsel must “participate” in the
matter for which they are retained. The Eighth Circuit
deferred to the district court’s interpretation of the rule. As
interpreted by the district court, the rule did not require
Hedges to monitor the discovery process.
The court in Macawber stated that “[l]ocal counsel does
not automatically incur a duty of care with regard to the
entire litigation. When the client vests lead counsel with
primary responsibility for the litigation, the duty of local
counsel is limited.” Id. (quoting Ortiz v. Barrett, 278
S.E.2d 833 (Va. 1981)). As the court explained:
Were the law otherwise, the costs involved in retaining
local counsel would increase substantially.
Confronted with a duty to monitor lead counsel’s
handling of the litigation, local counsel would be
bound to review all manner of litigation documents
and ensure compliance with all deadlines. Out-ofstate
litigants would be forced to pay a local attorney
to review lead counsel’s work. Given the skyrocketing
costs of litigation, the duplication of effort and
increased fees that would result from such a rule foster
problematic public policy. Though some litigants
may choose to enter a representation agreement
which includes extensive duties for local counsel,
Minnesota law does not (and should not) require
them to do so.
Id. at 257-58 (footnote omitted).
The West Virginia Supreme Court of Appeals followed Macawber in Armor v. Lantz, 535
S.E.2d 737 (W. Va. 2000). The court in Armor, however, tempered its adherence with an
explanation of some professional responsibilities on the part of local counsel. While
acknowledging that local counsel may contractually limit their duties, the court explained
that local counsel may not contract away those responsibilities “expressly or impliedly
imposed by the relevant rules of practice pertaining to the association of local counsel.”
Id. at 749. Local counsel must, for example, ensure that out-of-state lawyers with whom
they associate are qualified for pro hac vice admission. Under West Virginia rules they
must attend all hearings, trials and depositions, sign all pleadings, and be a responsible
lawyer in the matter for which they are engaged in all other respects.
The courts in Macawber and Armor took decidedly limited views of the role and responsibilities
of local counsel. On the other side of the coin is this view articulated several years
earlier by an Ohio federal court:
Although the term “local counsel” at one time may have meant less responsibility on the
part of the attorneys so designated, it is clear to the court, and should be clear to every
lawyer who litigates in this country, that . . . developments in the law have invalidated
this prior meaning. The trend is, properly, away from the view that some counsel have
only limited responsibility and represent a client in court in a limited capacity, or that
the local counsel is somewhat less the attorney for the client than is lead counsel.
In modern day practice, all counsel signing pleadings and appearing in a case are fully
accountable to the court and their clients for the presentation of the case. The Federal
Rules of Civil Procedure and Local Rules for the Northern District of Ohio do not recognize
any lawyers as less than full advocates for their clients. The law makes no distinction,
as to the liability of lawyers signing pleadings, between those who are designated
“lead” or “local” counsel. Federal Rule of Civil Procedure 11 places stringent obligations
on all counsel signing pleadings, however designated.
Gould, Inc. v. Mitsui Mining & Smelting Co., 738 F. Supp. 1121, 1125 (N.D. Ohio 1990).
Other courts hold similarly broad views of local counsel’s potential liability. See, e.g., Ingemi
v. Pelino & Lentz, 866 F. Supp. 156, 161-63 (D.N.J. 1994).
Which of these views is likely to prevail in a particular case? In the absence of controlling
authority in the jurisdiction, the wise course is to presume that the views articulated by
the courts in Gould and Ingemi will carry the day. To be sure, local counsel are not guarantors
of the conduct of the out-of-state lawyers who engage them; local counsel typically
must have some involvement in the alleged misconduct for responsibility to lie. See,
e.g., Masone v. Levine, 887 A.2d 1191, 1197 (N.J. Super. Ct. App. Div. 2005) (declining
to hold local counsel liable for misrepresentation by out-of-state counsel where local counsel
did not know true facts). But even limited involvement—such as signing pleadings or
discovery responses containing false statements of fact or law—potentially provides a sufficient
basis for sanctions or professional discipline.
If you agree to serve as local counsel, there are some fundamental steps you should take to
reduce your professional liability and responsibility risks. First, conduct your
standard conflicts of interest check. The fact that you are going to be local counsel rather
than lead counsel does not alter any conflict analysis. See Gould, 738 F. Supp. at 1125
(discussing client consent). Second, investigate the firm and prospective client for whom
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